In Re the Custody of Mason , 13 N.C. App. 334 ( 1971 )

185 S.E.2d 433 (1971) 13 N.C. App. 334

In the Matter of the CUSTODY of Leslie Carol MASON.

No. 7127DC731.

Court of Appeals of North Carolina.

December 29, 1971. Certiorari Denied February 9, 1972.

Childers & Fowler by Henry T. Fowler, Jr., Mount Holly, for petitioner (father).

Joseph B. Roberts, III, Mount Holly, for respondent (mother).

Certiorari Denied by Supreme Court February 9, 1972.

BROCK, Judge.

In determining child custody wide discretion is necessarily vested in the trial judge, who has the opportunity to see the parties and hear the witnesses, and his decision ought not to be upset on appeal absent a clear showing of abuse of discretion. In re Custody of Pitts, 2 N.C.App. 211, 162 S.E.2d 524. It is perfectly clear from the findings of the trial judge why he did not award custody of the child to respondent (mother); therefore, his award of custody to petitioner (father) should not be upset on this appeal. The welfare of the child is always open to inquiry by the court, and upon showing of a change of circumstances the order of custody may be modified. G.S. § 50-13.7(a).

Respondent (mother) argues that the trial judge failed to find facts which justify his denial of an award of alimony pendente lite. The trial judge is not required to make negative findings. Upon the application of respondent (mother) for alimony pendente lite, the burden was upon her to establish (1) that she is entitled to relief in her action for alimony without divorce, and (2) that she does not have sufficient means whereon to subsist during the prosecution of her claim or to defray the necessary expenses thereof. G.S. § 50-16.3. Respondent (mother) still has an opportunity to bring her action to trial on the merits.

No error.

BRITT and VAUGHN, JJ., concur.