Hardee v. Mitchell

51 S.E.2d 884, 230 N.C. 40, 1949 N.C. LEXIS 545

• Court: Supreme Court of North Carolina
• Decided: March 2, 1949
• Status: Published

Opinion

EeviN, J.

The parties to this proceeding were divorced in Florida. Hence, the petitioner has been well advised in point of procedure because the pertinent statute expressly prescribes that the custody of the child “of parents who have been divorced outside of North Carolina may be determined in a special proceeding instituted by either of the parents in the superior court of the county wherein the petitioner, or the respondent, or the child” resides at the commencement of the proceeding. G.S. 50-13; Phipps v. Vannoy, 229 N.C. 629, 50 S.E. 2d 906.

Petitioner did not request the court to find the facts or except to the finding made by it. He merely took a single exception “to the signing of the judgment.” This exception presents to this Court the sole question whether the facts found or admitted support the judgment. Smith v. Davis, 228 N.C. 172, 45 S.E. 2d 51; Russos v. Bailey, 228 N.C. 783, 47 S.E. 2d 22; Artis v. Artis, 228 N.C. 754, 47 S.E. 2d 228, Roach v. Pritchett, 228 N.C. 747, 47 S.E. 2d 20; Hughes v. Oliver, 228 N.C. 680, 47 S.E. 2d 6; Lea v. Bridgeman, 228 N.C. 565, 46 S.E. 2d 555; Ingram v. Mortgage Co., 208 N.C. 329, 180 S.E. 594; Warren v. Bottling Co., 207 N.C. 313, 176 S.E. 571; Wilson v. Charlotte, 206 N.C. 856, 175 S.E. 306; Ullery v. Guthrie, 148 N.C. 417, 62 S.E. 552.

The admitted facts relating to the marriage, parenthood, and divorce of the parties, the character and residence of the respondent, the tender age of the child, Kenneth Ray Hardee, and the financial ability of the petitioner, and the finding of the judge that the judicial award of custody actually made “will promote the welfare of said child” are sufficient to sustain the judgment. Price v. Price, 188 N.C. 640, 125 S.E. 264. This requires an affirmance.

Nevertheless, we have reviewed all of the testimony and have reached the deliberate conclusion that the judgment was entered with due regard for the fundamental principle that in a contest between parents over the custody of a child the welfare of the child at the time the contest comes on for hearing is the controlling consideration. Ridenhour v. Ridenhour, 225 N.C. 508, 35 S.E. 2d 617; Pappas v. Pappas, 208 N.C. 220, 179 S.E. 661; Tyner v. Tyner, 206 N.C. 776, 175 S.E. 144; Clegg v. Clegg, 186 N.C. 28, 118 S.E. 824.

It may be well to observe, in closing, 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. In re Means, 176 N.C. 307, 97 S.E. 39.

For the reasons set out above, the judgment is

Affirmed.