Blackley v. Blackley

204 S.E.2d 678 (1974) 285 N.C. 358

Phyllis Montague BLACKLEY (now Phyllis Daniel)
v.
Robert Harry BLACKLEY.

No. 50.

Supreme Court of North Carolina.

May 15, 1974.

Watkins, Edmundson & Wilkinson by Samuel B. Currin, III, Oxford, for defendant appellant.

Vann & Vann by Arthur Vann and Arthur Vann, III, Durham, for plaintiff appellee.

BRANCH, Justice.

The question presented by this appeal is whether there was sufficient evidence of change of circumstances affecting the welfare of Robert Harry Blackley, Jr., to justify modification of prior Orders placing him in the custody of his mother.

The court in which a divorce action is brought acquires jurisdiction over the custody of the unemancipated children of the marriage, and such jurisdiction continues even after the divorce becomes final. Stanback v. Stanback, 266 N.C. 72, 145 S.E.2d 332; Cox v. Cox, 246 N.C. 528, 98 S.E.2d 879; Griffin v. Griffin, 237 N.C. 404, 75 S.E.2d 133. The trial judge, who has the opportunity to see and hear the parties and the witnesses, is vested with broad discretion in cases involving custody of children. Swicegood v. Swicegood, 270 N.C. 278, 154 S.E.2d 324; Hinkle v. Hinkle, 266 N.C. 189, 146 S.E.2d 73; Griffin v. Griffin, supra. The welfare of the child is the paramount consideration which must guide the Court in exercising this discretion. Thus, the trial judge's concern is to place the child in an environment which will best promote the full development of his physical, mental, moral and spiritual faculties. Stanback v. Stanback, supra; Thomas v. Thomas, 259 N.C. 461, 130 S.E.2d 871; Griffith v. Griffith, 240 N.C. 271, 81 S.E.2d 918; Tyner v. Tyner, 206 N.C. 776, 175 S.E. 144.

The entry of an Order in a custody matter does not finally determine the rights of parties as to the custody, care and control of a child, and when a substantial change of condition affecting the child's welfare is properly established, the Court may modify prior custody decrees. G.S. § 50-13.7; Teague v. Teague, 272 N. C. 134, 157 S.E.2d 649; In re Herring, 268 N.C. 434, 150 S.E.2d 775; Stanback v. Stanback, supra; Thomas v. Thomas, supra; In re Means, 176 N.C. 307, 97 S.E. 39. However, the modification of a custody decree must be supported by findings of fact based on competent evidence that there has been a substantial change of circumstances affecting the welfare of the child, and the party moving for such modification assumes the burden of showing such change of circumstances. Shepherd v. Shepherd, 273 N.C. 71, 159 S.E.2d 357; Crosby v. Crosby, 272 N.C. 235, 158 S.E.2d 77; and Williams v. Williams, 261 N.C. 48, 134 S.E.2d 227. These rules of law must be applied in conjunction with the well-established principle that the trial judge's findings of fact in custody Orders are binding on the appellate courts if supported by competent evidence. Teague v. Teague, supra; Thomas v. Thomas, supra; see also, G.S. 1A-1, Rule 52(c).

In instant case, the modification of the prior decree of custody was primarily based on the finding that the child Robert Harry Blackley, Jr. "... is old enough to understand the impropriety of Mr. Daniel's antenuptial sojourns overnight in the home of plaintiff respondent and to resent the same; that the knowledge and recognition of these improprieties and the chastisement by his stepfather adversely affect him and will continue to do so.... (Emphasis ours)

We think that there was sufficient evidence to support a finding that the child Robert Harry Blackley, Jr. was old enough to recognize the impropriety of the premarital nighttime visits by plaintiff's present husband. However, under the circumstances of this case, we do not think that such conduct, standing alone, is sufficient to support a modification of the custody decree. It is only one circumstance to be considered by the trial court. This record otherwise clearly reveals that plaintiff was a mother who was intensely interested in her children's education, spiritual growth and physical welfare. Her success is reflected in the testimony of her pastor, her neighbors, her children's teachers, and the testimony of the defendant himself that he always found the children to be "neat, clean, mannerly, polite and courteous." The ultimate expression of her fitness to retain custody of her children is reflected in her son's testimony that, "I know that my Mother loves me and my sister."

We find nothing in this record which supports the very critical finding of resentment on the part of Robert toward his mother and stepfather or, "that the knowledge and recognition of these improprieties and the chastisement by his stepfather adversely affect him (Robert Harry Blackley, Jr.) and will continue to do so."

It is true that Robert, testifying for defendant, confirmed the premarital nighttime visits by his stepfather. However, he further testified that he had been camping and fishing with Don and that, "We had a good time. Don makes model airplanes with me and we have a good time doing that."

In regard to the chastisement by his stepfather, Robert testified, "Don has spanked me for different things. It was only a few times .... On occasion Don has popped me on my bottom and every now and then he would pop my little sister. Every now and then people make mistakes and they get popped on the bottom.... Don has never mistreated me and my Mother has never mistreated me."

We think that Robert's testimony discloses a comradeship and respect for his stepfather often not enjoyed by natural parents. This record pictures two well-adjusted children who have been well cared for by a loving mother who is deeply interested in their total welfare.

The Court of Appeals correctly held that the evidence is insufficient to show change of circumstances affecting the welfare of the child so as to justify a modification of the prior Order awarding custody to the mother.

The decision of the Court of Appeals vacating the Order of 5 June 1972, is

Affirmed.