Dean v. Dean

232 S.E.2d 470 (1977) 32 N.C. App. 482

Jerry Wayne DEAN
v.
Betty Culbreth DEAN.

No. 769DC697.

Court of Appeals of North Carolina.

March 2, 1977.

Daniel F. Finch and Thomas L. Currin, Oxford, for plaintiff-appellee.

Broughton, Broughton, McConnell & Boxley, P.A., by John D. McConnell, Jr., Raleigh, for defendant-appellant.

BRITT, Judge.

Defendant contends that the court erred in finding and concluding that her failure to take Jason to church and Sunday School was jeopardizing his spiritual values. This contention is without merit.

Defendant argues that this finding is not supported by evidence and that the court's consideration of church attendance is forbidden by the United States and North Carolina Constitutions. We disagree.

We think the finding that defendant had not taken Jason to church or Sunday School on a regular basis is adequately supported by competent evidence. Defendant detailed her weekends with her children but no mention was made of church attendance. Furthermore, a defense witness, who was a Sunday School teacher, testified that she would love to take Jason to church although she had never done so. The findings of the trial court are conclusive when supported by competent evidence. Swicegood v. Swicegood, 270 N.C. 278, 154 S.E.2d 324 (1967).

Defendant's argument that this finding violates the constitutional provisions concerning the separation of church and state is also without support. Certainly, the trial court cannot base its findings on the preferability of any particular faith or religious instruction. However, as stated in Blackley v. Blackley, 285 N.C. 358, 362, 204 S.E.2d 678, 681 (1974):

"The welfare of the child is the paramount consideration which must guide the Court in exercising this discretion. Thus, the trial judge's concern is to place the child in an environment which will best promote the full development of his physical, mental, moral and spiritual faculties.. . ."

We think the spiritual welfare of a child is a factor that may be considered by the trial court in making a custody determination. Therefore, this assignment is overruled.

The trial court also found that at the time of the original award of custody to defendant "no findings of fact were made as to the custody of the minor child." Defendant contends that this finding is error since it has no bearing at this point on the question of whether custody should remain in defendant. We fail to perceive any error in this finding by the trial court. The court's findings are supported by competent evidence and are therefore conclusive on appeal.

Defendant contends that the trial court erred in finding and concluding that there had been a material change of conditions affecting the child's custody in that defendant had given birth to two illegitimate children since the original award of custody. This contention is without merit.

Defendant argues that the mere showing of the birth of two illegitimate children is not sufficient to support the conclusion that there has been a material change in circumstances. She relies on the line of cases that have held that a parent who commits adultery does not automatically, per se, become unfit to have custody of children. Savage v. Savage, 15 N.C.App. 123, 189 S.E.2d 545, cert. denied, 281 N.C. 759, 191 S.E.2d 356 (1972); In re McCraw Children, 3 N.C.App. 390, 165 S.E.2d 1 (1969). We think the principle stated in those cases does not apply here and hold that the fact that defendant had given birth to two illegitimate children and was rearing them in her home, was a sufficient change in circumstances to justify a change in the custody of Jason.

Defendant's final contentions are that the court erred in concluding that she was not a fit and proper person to have custody of her child and that it would be in the best interest of Jason to place him in the custody of plaintiff. These contentions lack merit.

The welfare of the child is the polar star by which the courts must be guided in awarding custody. In re Moore, 8 N.C.App. 251, 174 S.E.2d 135 (1970). In demining custody, the court must consider all of the facts of the case and decide the issue in accordance with the best interests of the child. Paschall v. Paschall, 21 N.C.App. 120, 203 S.E.2d 337 (1974). The decision to award custody of a child is properly vested in the discretion of the trial judge who has the opportunity to see the parties in person, to hear and observe the witnesses, and his decision should not be disturbed on appeal absent a clear showing of abuse of discretion. Savage v. Savage, supra.

Competent evidence supports each of the court's findings of fact, which, in turn, support its conclusions of law. Also, we fail to perceive any abuse of discretion in the conclusion that the best interest and welfare of Jason would be promoted by awarding his custody to plaintiff. Therefore, the order appealed from is

Affirmed.

BROCK, C. J., and MORRIS, J., concur.