King v. Allen

212 S.E.2d 396 (1975) 25 N.C. App. 90

Wilbur F. KING, Jr.
v.
Marilyn Lee King ALLEN.

No. 748DC1015.

Court of Appeals of North Carolina.

March 5, 1975. Certiorari Denied May 6, 1975.

White, Allen, Hooten & Hines, P. A. by John R. Hooten and Thomas J. White, and Gerrans & Spence, P. A. by William D. Spence, Kinston, for plaintiff appellee.

Blackwell M. Brogden, Durham, for defendant appellant.

Certiorari Denied by Supreme Court May 6, 1975.

BRITT, Judge.

The record provides no explanation for the long delay between the date the order we are asked to review apparently was signed and the date it was filed. Nevertheless, we treat the papers filed by defendant as a petition for writ of certiorari, allow the petition, and consider the cause on its merits.

G.S. § 50-13.7(a) provides that an order of a court of this State providing for the custody 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. However, the party moving for modification of a custody order has the burden of showing that there has been a substantial change of circumstances affecting the welfare of the child. Blackley v. Blackley, 285 N.C. 358, 204 S.E.2d 678 (1974); Todd v. Todd, 18 N.C.App. 458, 197 S.E.2d 1 (1973).

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, his findings of fact in custody orders are binding on the appellate courts if supported by competent evidence, Blackley v. Blackley, supra, and his decision should not be upset absent a clear showing of an abuse of discretion. Hensley v. Hensley, 21 N.C.App. 306, 204 S.E.2d 228 (1974).

The findings of fact in the order under review are fully supported by competent evidence, and no abuse of discretion has been shown, therefore, the order is

Affirmed.

MORRIS and ARNOLD, JJ., concur.