Hensley v. Hensley

204 S.E.2d 228 (1974) 21 N.C. App. 306

Margaret P. HENSLEY
v.
James T. HENSLEY.

No. 7426DC277.

Court of Appeals of North Carolina.

April 17, 1974.

Bailey, Brackett & Brackett by Allen A. Bailey and Ervin, Horack & McCartha, by Woodard E. Farmer, Jr., and James M. Talley, Jr., Charlotte, for plaintiff appellee.

Francis O. Clarkson, Jr., Charlotte, for defendant appellant.

MORRIS, Judge.

Defendant first assigns error to the following findings of the court: That there has been no substantial change in the circumstances under which the child is being reared in the home than existed when the court entered its order on 7 February 1972; that plaintiff customarily left her daughter under the care and supervision of appropriate persons; that plaintiff was a fit person to have the care, custody, and control of the minor daughter. All these findings of fact are based upon competent evidence, and they will not be disturbed on appeal. Dunham's Music House v. Theatres, 10 N.C.App. 242, 178 S.E.2d 124 (1970).

G.S. § 50-13.7(a) provides as follows:

"An order of a court of this State for custody or support, or both, of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested."

The change in circumstances contemplated by G.S. § 50-13.7(a) is a change affecting the welfare of the minor children. Kenney v. Kenney, 15 N.C.App. 665, 190 S.E.2d 650 (1972); In re Harrell, 11 N.C.App. 351, 181 S.E.2d 188 (1971). The party seeking to have the custody order vacated has the burden of showing that circumstances have changed between the time of the order and the time of the hearing on his motion. Crosby v. Crosby, 272 N.C. 235, 158 S.E.2d 77 (1967). This Court has held that in determining matters of child custody, the trial court is vested with wide discretion, and its decision should not be upset absent a clear showing of an abuse of discretion. Jarman v. Jarman, 14 N.C.App. 531, 188 S.E.2d 647 (1972); In re Custody of Mason, 13 N.C. App. 334, 185 S.E.2d 433 (1971).

Defendant contends that he has shown changes in circumstances sufficient to warrant modification of the custody order. The son of plaintiff by a previous marriage had been living with plaintiff at the time of the original order, but he had moved into the home of plaintiff's parents at the time of the hearing on the motion to modify the order. Defendant had been attending school at the time of the original order; but at the time of the motion to modify, he was working full time. We cannot sustain the contention that such a showing of a change of circumstances mandates modification of the custody order. There was sufficient evidence presented from which the trial court was justified in finding that circumstances affecting the welfare of the child had not changed. The plaintiff, the minor child, and a half-sister of the minor child continued to live at the same residence; plaintiff continued to earn a living by babysitting for neighborhood children; plaintiff continued to be a good mother; and she had not conducted herself in any manner other than as a lady. As we have stated, the movant has the burden of showing that circumstances have changed; and the trial court had wide discretion in matters of child custody. No abuse of discretion has been shown, and the trial court's finding that circumstances have not changed will not be disturbed.

Defendant assigns error as well to the conclusions of law in Judge Griffin's order. A careful review of the record reveals that the conclusions are supported by the findings of fact, all of which are based on competent evidence. Findings of fact are conclusive if supported by competent evidence and will not be disturbed on appeal even though there is evidence contra. Dunham's Music House v. Theatres, supra.

No error.

BROCK, C. J., and CARSON, J., concur.