In Re Moore

181 S.E.2d 118 (1971) 11 N.C. App. 320

In re Amy Hope MOORE, a Minor.

No. 712DC203.

Court of Appeals of North Carolina.

May 26, 1971.

Frazier T. Woolard, Washington, for petitioner appellant.

Wilkinson & Vosburgh, by John A. Wilkinson, Washington, for respondent appellee.

CAMPBELL, Judge.

Petitioner's first assignment of error is directed at the order of the trial judge consolidating the case involving the custody of Amy Hope Moore with the case involving the custody of her two older sisters, Vickie Ann Moore and Sandra Annette Moore. There is no merit in this assignment of error. Rule 42(a) of the North Carolina Rules of Civil Procedure provides:

"When actions involving a common question of law or fact are pending in one division of the court, the judge may order a joint hearing or trial of any or all the matters in issue in the actions; he may order all the actions consolidated; and he may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. When actions involving a common question of law or fact are pending in both the superior and the district court of the same county, a judge of the superior court in which the action is pending may order all the actions consolidated, and he may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay."

Both cases were pending in the district court. While the case involving the custody of the two older children had originated in the superior court, it had been transferred to the district court by an order entered 24 July 1970. Both cases being properly before the district court, it was within the discretion of the trial judge as to whether consolidation should be allowed. G.S. § 1-1A, Rule 42(b); Davis v. Jessup and Carroll v. Jessup, 257 N.C. 215, 125 S.E.2d 440 (1962); Phelps v. McCotter, 252 N.C. 66, 112 S.E.2d 736 (1960); see also 1 McIntosh, N.C. Practice 2d, § 1342 (Supp.1970). An action of the trial judge as to a matter within his judicial discretion will not be disturbed unless a clear abuse of discretion is shown. Whaley v. Rhodes, 10 N.C.App. 109, 177 S.E.2d 735 (1970). Moreover, when the consolidation of actions for the purpose of trial is assigned as error, the appellant must show injury or prejudice arising therefrom. Davis v. Jessup and Carroll v. Jessup, supra. From the record before us, no abuse of discretion, injury or prejudice is made to appear.

Petitioner next assigns as error the action of the trial judge in "failing to recognize the rights of Samuel Nick Moore regarding his position as a surviving parent and the custody of his children." Petitioner specifically contends that because Samuel Nick Moore expressed a desire that all three of his children live together with petitioner, the trial judge erred in disregarding that desire. There is no merit in this contention. "`The welfare of the child in controversies involving custody is the polar star by which the courts must be guided in awarding custody.' * * *" Wilson v. Wilson, 269 N.C. 676, 153 S.E.2d 349 (1967). The desires of the surviving parent with reference to the custody of his children is not binding on the court. See 3 Lee, N.C. Family Law, § 225, p. 30 (1963). Samuel Nick Moore, currently serving a life sentence for the murder of his wife (see State v. Moore, 275 N.C. 198, 166 S.E.2d 652 (1969); and State v. Moore, 276 N.C. 142, 171 S.E.2d 453 (1970)), is not in a position to decide the custody of his children.

We have reviewed the record in this case and the evidence adduced at the hearing supports the findings of fact of the trial judge and those findings support the judgment entered.

For the reasons stated, the judgment of the district court is

Affirmed.

BRITT and GRAHAM, JJ., concur.