James v. Pretlow

86 S.E.2d 759 (1955) 242 N.C. 102

Carolyn Christle (Pretlow) JAMES, Petitioner,
v.
Ruth Raines PRETLOW, Respondent.

No. 315.

Supreme Court of North Carolina.

April 13, 1955.

Luther Hamilton and Luther Hamilton, Jr., Hamilton & Phillips, Moorehead City, for plaintiff, appellant.

Rountree & Rountree, Wilmington, for respondent, appellee.

PARKER, Justice.

Petitioner's sole exception is to the signing of the judgment. Therefore, her assignment of error, based on this exception, presents one question for decision: whether the facts found by the Judge are sufficient to support the judgment. Warshaw v. Warshaw, 236 N.C. 754, 73 S.E.2d 900; Glace v. Pilot Throwing Co., 239 N.C. 668, 80 S.E.2d 759; Wyatt v. Sharp, 239 N.C. 655, 80 S.E.2d 762; Donnell v. Cox, 240 N.C. 259, 81 S.E.2d 664.

The Judge's findings of fact not having been excepted to "are presumed to be supported by the evidence and are binding on appeal." Donnell v. Cox, supra.

Where one parent is dead, the surviving parent has a natural and legal right to the custody and control of their minor children. This right is not absolute, and it may be interfered with or denied but only for the most substantial and sufficient reasons, and is subject to judicial control only when the interests and welfare of the children clearly require it. Latham v. Ellis, 116 N.C. 30, 20 S.E. 1012; In re Turner, 151 N.C. 474, 66 S.E. 431; Atkinson v. Downing, 175 N.C. 244, 95 S.E. 487; Brickell v. Hines, 179 N.C. 254, 102 S.E. 309; Clegg v. Clegg, 186 N.C. 28, 118 S.E. 824; In re Shelton, 203 N.C. 75, 164 S.E. 332; 67 C.J.S., Parent and Child, § 11, page 637. See Wall v. Hardee, 240 N.C. 465, 82 S.E.2d 370.

This Court said in Tyner v. Tyner, 206 N.C. 776, 175 S.E. 144, 146: "In determining the custody of children, their welfare is the paramount consideration. Even parental love must yield to the claims of another, if, after due judicial investigation, it is found that the best interest of the children is subserved thereby."

Courts should ever bear in mind that a child "over whom * * * immortality broods like the day" is "father of the man," and his happiness and welfare is a matter of prime consideration.

However, courts should never lightly disregard the legal rights of parents, or a surviving parent, nor should their natural and emotional ties with their children be overlooked. "* * * the law seeks to work in harmony with nature, and to continue those ties which bind man to his own flesh * * *." Morris v. Grant, 196 Ga. 692, 27 S.E.2d 295, 296.

"In order to justify depriving a parent of the custody of a child in favor of third persons there must be substantial reasons or, as various courts have put it, the reasons must be real, cogent, weighty, strong, powerful, serious, or grave." 67 C.J.S., Parent and Child, § 12, page 651.

The wishes of a child of sufficient age to exercise discretion in choosing a custodian is entitled to considerable weight when the contest is between parents, but is not controlling. Where the contest is between a parent and one not connected by blood to the child, the desire of the child will not ordinarily prevail over the natural right of the parent, unless essential to the child's welfare. 39 Am.Jur., Sec. 21; 67 C.J.S., Parent and Child, § 12c.

The case of Harris v. Harris, 115 N.C. 587, 20 S.E. 187, 188, involved the custody of a 9½ year old boy between the mother and father of the child. The Court said: "What the preferences of the child were is not found as a fact, though this has weight always with a court in such cases, according to the age and intelligence of the child."

Chief Justice Pearson said for the Court in Spears v. Snell, 74 N.C. 210: "The boy during a long residence in the family of his grandfather and uncle has formed attachments and associations which he is unwilling to sever. At the age of thirteen, a minor has a right to have his wishes and feelings taken into consideration, whether in the choice of a master as an apprentice, or of a guardian to whom his estate and person are to be committed, or of a friend who, without respect to the want of an estate, will undertake to provide for his maintenance and education, to prevent his being put out as an apprentice, as in our case." This Court reversed the lower court holding that the facts of the case "show beyond all question that it is for the interest of the boy to remain with his uncle," and not to be given to the custody of his stepfather or mother.

The Judge found that the father, mother and stepmother of these two children, some four days before their father was killed in an automobile wreck, agreed that they should live with their father and stepmother during the scholastic year 1954-1955 in order to attend the New Hanover High School in Wilmington. This special proceeding was argued before us on 22 March 1955. The school year 1954-1955 will end in two or three months. The custody of these two children for that school year is now almost a fait accompli, and it is perfectly clear that their best interests and welfare demand that their custody for this school year be not disturbed.

The awarding of their custody to their stepmother after this school year is based primarily upon the findings of fact that these children desire to live with their stepmother so that they can attend the High School in Wilmington, that their father by trust agreement and indenture and by will provided for their support and education and appointed their stepmother as trustee of his property for that purpose, and the conclusion of law that their best interest and welfare and happiness will be promoted by awarding their custody to respondent so that they can attend this school. The appellee contends that this Court "should be satisfied that the opportunities offered these children in the educational field in the New Hanover High School are far superior to those offered them at the Beaufort High School, or the High School in Carteret County, as the children themselves specifically testified without serious contradiction," and that this Court under the supervisory powers given us under Article IV, Section 8, of the State Constitution, should correct the judgment below so as definitely to give the custody of these children to their stepmother, at least, for the school years 1955-1956 and 1956-1957 so that they can graduate from the High School in Wilmington. Whether the contention that the High School in Wilmington offers better educational advantages than the High School in Beaufort or Carteret County is correct or not, we have no opinion. Suffice it to say that the Trial Judge made no such findings of fact in that respect, as contended for by the appellee.

In this contest between a mother and a stepmother for the custody of these children, the findings of fact by the Judge do not clearly and plainly show that their interests and welfare will be promoted by awarding their custody to their stepmother, and the judgment below must be modified by striking out the part awarding their custody to their stepmother after the scholastic year 1954-1955.

The mother and stepmother are both ladies of good character, and both have fit and proper homes to rear these children. These 16 year old children at the trial below expressed equal affection and love for their mother, stepmother and stepfather. It is unfortunate that this contest over their custody has arisen. In passing upon this appeal it is our duty to apply to the facts found below and the judgment the applicable principles of law, and in doing so, in accordance with what has been said above, the judgment below must be

Modified and affirmed.

BARNHILL, C. J., took no part in the consideration or decision of this case.