In Re Bowen

172 S.E.2d 62 (1970) 7 N.C. App. 236

In the Matter of Lynwood Clarence BOWEN, III.

No. 7018DC10.

Court of Appeals of North Carolina.

February 25, 1970.

Latham, Pickard & Ennis, by James F. Latham, Burlington, for petitioner appellee.

Comer & Harrelson, by John F. Comer, Greensboro, for respondent appellant.

GRAHAM, Judge.

Custody orders 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. G.S. § 50-13.7. "[T]he control and custody of minor children cannot be determined finally. Changed conditions will always justify inquiry by the courts in the interest and welfare of the children, and decrees may be entered as often as the facts justify." In re Marlowe, 268 N.C. 197, 199, 150 S.E.2d 204.

Respondent contends that the court erred in modifying the custody order without a showing "of a substantial change in circumstances that would enhance the child's welfare and with no showing or finding that the father was not a fit and proper person to have the custody and control of his son as he had been found to be on June 28, 1967."

We do not understand the law in this jurisdiction to be, as respondent argues, that a change in custody may not be ordered absent a finding that the person having custody under a prior order has become unfit or is no longer able or suited to retain custody. While such a consideration is of utmost importance in inquiring into the matter of custody, it is not alone determinative. In Shepherd v. Shepherd, 273 N. C. 71, 159 S.E.2d 357, Branch, J., speaking for the court, reiterated the rationale concerning the modification of custody decrees upon a change of circumstances by quoting the following principle set forth in Hardee v. Mitchell, 230 N.C. 40, 51 S.E.2d 884, as follows:

"'* * * the welfare of the child at the time the contest comes on for hearing is the controlling consideration. * * It may be well to observe * * * that the law is realistic and takes cognizance of the ever changing conditions of fortune and society. While a decree making a judicial award of the custody of a child determines the present rights of the parties to the contest, it is not permanent in its nature, and may be modified by the court in the future as subsequent events and the welfare of the child may require. * * *'"

"A judgment awarding custody is based upon the conditions found to exist at the time it is entered. The judgment is subject to such change as is necessary to make it conform to changed conditions when they occur. * * *" Stanback v. Stanback, 266 N.C. 72, 145 S.E.2d 332.

The record discloses substantial competent evidence in support of the court's findings and the findings are therefore conclusive on appeal. Teague v. Teague, 272 N.C. 134, 157 S.E.2d 649; Thomas v. Thomas, 259 N.C. 461, 130 S.E.2d 871. The more difficult question is whether the findings establish a change in circumstances of such a material nature as to permit a change in the custody order of 28 July 1967. We are of the opinion that they do.

When the original order was entered the mother was attending high school in both the summer and winter months. Her plan was to take the child to the home of her father who lived in Albany, Georgia. She would be in school during the day and her father would be absent from the home for three weeks out of each month. The record indicates that a decision in the matter was reserved so that a report could be obtained as to the conditions and circumstances in the home of the maternal grandfather. No report appears in the record but the record does indicate that the grandfather was divorced and remarried. Living with him in the home were two stepdaughters and a child by the second marriage. No findings were made concerning the suitability of his home but there was a finding that "* * * the court finds and holds under all of the circumstances, and after fully considering the plans offered by each party * * * that the plan offered by the petitioner [father] is in the best interest of the said child." At that time the mother was hardly more than a child herself. It was evident that her plan to take the child into the home of her father and his new family, without assurances that the child would receive proper care while the mother attended school, offered little basis for an award of custody when compared with the father's plan for the care of the child.

The mother's circumstances at the time of the hearing on the motion to modify the original order had changed substantially. She was married to a man of good character and reputation and had a good and comfortable home into which to take the child. She was older and more mature. For at least a year she had demonstrated commendable stability and established an excellent reputation. She planned to terminate all employment so as to care for the child full time in the home. These findings, when contrasted with a situation where the child was being cared for at various times by various persons including a father, grandfather, grandmother (all of whom were employed outside the home) and nursery school personnel, formed a basis for the court's conclusion that the interest and welfare of the child would best be served through a modification of the prior custody order. The trial judge observed the parties and witnesses and had an opportunity to evaluate their testimony first hand. The evidence fully supports his findings which in our opinion support his conclusions and judgment.

Respondent insists that a different result is dictated by the cases of Shepherd v. Shepherd, supra, and Stanback v. Stanback, supra. We do not agree. In the Shepherd case, the lack of a finding of fact of any change of circumstances affecting the welfare of the child required that the matter be remanded for a hearing de novo. In the Stanback case, the evidence offered was practically identical to the evidence that had been considered by the judge that entered the first custody order less than two months previously. In the instant case we have before us extensive findings and substantial evidence indicating a change in circumstances.

Affirmed.

BROCK and BRITT, JJ., concur.