Jarman v. Jarman

188 S.E.2d 647 (1972) 14 N.C. App. 531

Alton Lee JARMAN
v.
Betty Dawson JARMAN (now Betty Dawson Jarman Keltz).

No. 723DC365.

Court of Appeals of North Carolina.

May 24, 1972. Certiorari Denied July 31, 1972.

Cecil D. May, New Bern, for plaintiff appellee.

Robert G. Bowers, New Bern, for defendant appellant.

Certiorari Denied by Supreme Court July 31, 1972.

HEDRICK, Judge.

Since the only exception brought forward on this appeal is to the order awarding custody of the child to the plaintiff, our consideration is limited to the question of whether the findings made by the trial judge support the order and whether error of law appears on the face of the record. Cox v. Cox, 246 N.C. 528, 98 S.E.2d 879 (1957); Stancil v. Stancil, 255 N.C. 507, 121 S.E.2d 882 (1961); Prince v. Prince, 7 N.C.App. 638, 173 S.E.2d 567 (1970).

In determining whether the findings support the order we refer first to the applicable statute, G.S. § 50-13.2(a) which provides:

"An order for custody of a minor child entered pursuant to this section shall award the custody of such child to such person, agency, organization or institution as will, in the opinion of the judge, best promote the interest and welfare of the child."

"This statutory directive merely codified the rule which had been many times announced by the North Carolina Supreme Court to the effect that in custody cases the welfare of the child is the polar star by which the court's decision must ever be guided." In re Custody of Pitts, 2 N.C.App. 211, 162 S.E.2d 524 (1968). In applying these legal principles to the facts of a particular case, the trial judge is vested with a wide discretion for he has an opportunity to observe the parties and the witnesses, and his decision ought not to be upset on appeal absent a clear showing of abuse of discretion. In re Custody of Mason, 13 N.C.App. 334, 185 S.E.2d 433 (1971); In re Custody of Pitts, supra.

It is clear from the findings of fact made by Judge Phillips why he concluded that the best interest and welfare of the child required that the child remain in the custody of her father. The findings reflect the fact that the consent order with the same arrangements with the paternal grandmother had been completely satisfactory and had served the best interest and welfare of the child for more than two years. Although his honor's findings do indicate that the circumstances of the mother have changed since she consented to the order awarding custody of the child to the father, and that she has established a home in Norfolk, Virginia, with facilities satisfactory for a child of Dawn's age, this fact alone did not require a change of the custody, or preclude the judge from awarding the custody of the child to the plaintiff. There is nothing in the record to indicate that the trial judge abused his discretion.

The case of Boone v. Boone, 8 N.C.App. 524, 174 S.E.2d 833 (1970) relied upon by the defendant has no application in the facts of this case. In Boone this Court simply held that the evidence did not support a finding "that the best interest, health and welfare of Daniel Richard Boone, age seven months, and Billy Ray Boone, age two years, would best be served if they were allowed to remain in the custody of the father and to remain at the home of Mr. and Mrs. Wilburn Frye."

In the present case since no exceptions were taken to the admission of evidence or to the findings of fact, the facts found are presumed to be supported by competent evidence and are binding on appeal. Stancil v. Stancil, supra. We hold no error appears on the face of the record and the facts found by the trial judge support his conclusions which in turn support the order awarding custody of Angela Dawn Jarman to the plaintiff with visitation privileges to the defendant.

Affirmed.

BRITT and PARKER, JJ., concur.