In Re Custody of Poole

173 S.E.2d 545 (1970) 8 N.C. App. 25

In the Matter of CUSTODY OF Glenn M. POOLE, Jr., and Mary Ellen Poole, Minor children of Glenn M. Poole and Nancy White Poole.

No. 7010DC7.

Court of Appeals of North Carolina.

May 6, 1970.

Vaughan S. Winborne, Raleigh, for Nancy White Poole, petitioner-appellant.

Allen W. Brown, Raleigh, for Glenn M. Poole, Sr., respondent-appellee.

CAMPBELL, Judge.

Orders awarding custody of children may be modified by a court when it has been shown that there has been a substantial "change of circumstances affecting the child's welfare." Crosby v. Crosby, 272 N.C. 235, 158 S.E.2d 77 (1967). If the parent awarded custody of children were subsequently to become unfit, it would be possible for the trial court, upon proper findings, to grant custody to a fit person. Where there is no evidence that the fitness or unfitness of either party has changed, the trial court may not modify a prior order awarding custody unless some other sufficient change of condition is shown. Stanback v. Stanback, 266 N.C. 72, 145 S.E.2d 332 (1965).

We are of the opinion that the findings of the trial judge in the instant case do not support modification of the initial custody order which found her to be fit to have custody. The only change shown here is that Nancy has been adjudged in contempt for violating an order of the court regarding her association with one John W. Gregory, III. There is no finding that the association with Gregory was immoral or that it was detrimental to the children's welfare. We do not feel that the citation of Nancy for contempt in the instant case, without more, is a sufficient change of condition to require a finding that "Nancy White Poole is not a fit and proper person to have custody * * *" of the children involved herein. Stanback v. Stanback, supra; Neighbors v. Neighbors, 236 N.C. 531, 73 S.E.2d 153 (1952).

The welfare of the children is the determining factor in the custody proceedings and the award of custody based on that factor will be upheld when supported by competent evidence. In Re Custody of Ross, 1 N.C.App. 393, 161 S.E.2d 623 (1968); cert. den., 274 N.C. 274.

Reversed.

PARKER and HEDRICK, JJ., concur.