Wyche v. Wyche

225 S.E.2d 626 (1976) 29 N.C. App. 685

Paul D. WYCHE
v.
Carol D. WYCHE.

No. 7526DC1030.

Court of Appeals of North Carolina.

June 16, 1976.

Mraz, Aycock, Casstevens & Davis by Nelson M. Casstevens, Jr., Charlotte, for plaintiff-appellant.

Copeland & Troiano by Alexander Copeland, III, Charlotte, for defendant-appellee.

MORRIS, Judge.

Plaintiff appellant father, contending that the district court ignored critical evidence, maintains that the trial court abused its discretion in awarding custody to the defendant mother. We disagree.

When parents, rebounding from the emotional intensity of a broken marriage, fight custody rights in the courts, the evidence is often presented in ". sharp conflict [and] [e]ach party vigorously maintain[s] that he [or she is] the proper person to have custody of the minor children." Beck v. Beck, 22 N.C.App. 655, 657, 207 S.E.2d 378, 380 (1974). Thus, "[o]ur cases have long recognized that the trial judge is in the best position to resolve these conflicts of evidence and that the decision of the trial court will not be reviewed in an absence of abuse of discretion." Id. 22 N.C.App. at 657, 207 S.E.2d at 380.

Here, the record indicates that the evidence was in fact "sharply contradictory" and the trial court's findings of fact amply reflect the problematic nature of this case. The trial court, noting the depth of personal sentiment expressed by the parties and carefully documenting the evidence and contentions, first stated that both parents could ably care for and nurture this minor child, but went on, in its discretion, to award the custody to the mother. The court's findings of fact included a good portion of the expert testimony of the psychologists. There is no question but that the trial court understood the psychological complexities involved and in fact conditioned its award by requiring intensive counselling for the parties. This decision by the trial court indicated a careful understanding of this particular case, and it structured its decision accordingly. When so viewed, the record amply negates any validity to plaintiff's contention.

Plaintiff further contends that the trial court abused its discretion by awarding defendant $2,000 in attorney fees. Specifically, plaintiff argues that "[u]nder the provisions of North Carolina General Statutes § 50-13.6, the General Assembly did not intend for the trial judge to award attorney's fees to one of the litigants because of her impoverishment if the adversary in the litigation were equally impoverished." We disagree.

Under G.S. 50-13.6, a district court may award attorney fees in a custody matter, and the trial court's determination is binding on this Court in the absence of abuse of discretion. Kearns v. Kearns, 6 N.C.App. 319, 170 S.E.2d 132 (1969). The evidence indicates that neither party enjoys financial security, but the facts also indicate that defendant mother filed her motion in the cause after plaintiff father seized the child from her actual custody in violation of the separation agreement. She brought this action in good faith and carefully illustrated her inability to defray the cost of litigation. The facts indeed tend to show that plaintiff father has incurred significant expenses. However, he continues to draw a good salary and continues to enjoy a relatively comfortable standard of living.

Based on all the evidence presented, we do not consider the trial court's assessment of legal fees against plaintiff beyond his overall ability to pay, and we thus find no abuse of discretion.

Wherefore, the order is

Affirmed.

HEDRICK and ARNOLD, JJ., concur.