Harrington v. Harrington

Court of Appeals of North Carolina

Harrington v. Harrington

192 S.E.2d 638, 16 N.C. App. 628, 1972 N.C. App. LEXIS 1783

CourtCourt of Appeals of North Carolina

DecidedNovember 22, 1972

DocketNo. 7226DC775

StatusPublished

Cited by2 cases

This text of 192 S.E.2d 638 (Harrington v. Harrington) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Harrington v. Harrington, 192 S.E.2d 638, 16 N.C. App. 628, 1972 N.C. App. LEXIS 1783 (N.C. Ct. App. 1972).

Pincite

Opinion

BRITT, Judge.

We hold that the part of the order awarding custody of Leslie Jane and Amy to defendant with visitation privileges to plaintiff is supported by sufficient findings of fact based on competent evidence. Since the trial judge has the opportunity [630]*630to see the parties in person and to hear the witnesses, it is mandatory that the trial judge be given wide discretion in making a determination as to custody, and that determination will not be upset on appeal absent a clear showing of abuse of discretion. In re Custody of Stancil, 10 N.C. App. 545, 179 S.E. 2d 844 (1971). No abuse of discretion is made to appear here.

As to that part of the order awarding custody of Bruce to defendant, we hold that the court erred. The pleadings and the evidence established, and the court found as a fact, that Bruce’s custody was awarded to plaintiff by an order of Mecklenburg District Court dated 26 August 1971. To modify or vacate an order of a court of this State providing for the custody of a minor child, there must be a showing of changed circumstances, G.S. 50-13.7, and the change of circumstances must be substantial. Rothman v. Rothman, 6 N.C. App. 401, 170 S.E. 2d 140 (1969). The only finding of change of circumstances as to Bruce was that “defendant is now residing in Mecklenburg County, North Carolina.” We hold that this was not a substantial change of circumstances.

It would appear that any proceedings to determine Bruce’s custody should be by motion in the cause in which his custody was previously awarded to plaintiff. G.S. 50-13.7.

Obviously, the $300.00 per month plaintiff is required by the order to pay for support of the children is based on the assumption he would be contributing to the support of three children. In view of our ruling as to Bruce, that part of the order providing for $300.00 monthly payments is vacated and the cause is remanded for further proceedings on that question.

As to custody of Leslie Jane and Amy, the order is affirmed.

As to custody of Bruce, the order is vacated.

As to amount of child support, the order is vacated and cause remanded.

Chief Judge Mallard and Judge Brock concur.

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BRITT, Judge.

We hold that the part of the order awarding custody of Leslie Jane and Amy to defendant with visitation privileges to plaintiff is supported by sufficient findings of fact based on competent evidence. Since the trial judge has the opportunity [630]*630to see the parties in person and to hear the witnesses, it is mandatory that the trial judge be given wide discretion in making a determination as to custody, and that determination will not be upset on appeal absent a clear showing of abuse of discretion. In re Custody of Stancil, 10 N.C. App. 545, 179 S.E. 2d 844 (1971). No abuse of discretion is made to appear here.

As to that part of the order awarding custody of Bruce to defendant, we hold that the court erred. The pleadings and the evidence established, and the court found as a fact, that Bruce’s custody was awarded to plaintiff by an order of Mecklenburg District Court dated 26 August 1971. To modify or vacate an order of a court of this State providing for the custody of a minor child, there must be a showing of changed circumstances, G.S. 50-13.7, and the change of circumstances must be substantial. Rothman v. Rothman, 6 N.C. App. 401, 170 S.E. 2d 140 (1969). The only finding of change of circumstances as to Bruce was that “defendant is now residing in Mecklenburg County, North Carolina.” We hold that this was not a substantial change of circumstances.

It would appear that any proceedings to determine Bruce’s custody should be by motion in the cause in which his custody was previously awarded to plaintiff. G.S. 50-13.7.

Obviously, the $300.00 per month plaintiff is required by the order to pay for support of the children is based on the assumption he would be contributing to the support of three children. In view of our ruling as to Bruce, that part of the order providing for $300.00 monthly payments is vacated and the cause is remanded for further proceedings on that question.

As to custody of Leslie Jane and Amy, the order is affirmed.

As to custody of Bruce, the order is vacated.

As to amount of child support, the order is vacated and cause remanded.

Chief Judge Mallard and Judge Brock concur.

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192 S.E.2d 638, 16 N.C. App. 628, 1972 N.C. App. LEXIS 1783, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harrington-v-harrington-ncctapp-1972.

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