In Re the Custody of Mason

Court of Appeals of North Carolina

In Re the Custody of Mason

185 S.E.2d 433, 13 N.C. App. 334, 1971 N.C. App. LEXIS 1243

CourtCourt of Appeals of North Carolina

DecidedDecember 29, 1971

Docket7127DC731

StatusPublished

Cited by8 cases

This text of 185 S.E.2d 433 (In Re the Custody of Mason) 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

In Re the Custody of Mason, 185 S.E.2d 433, 13 N.C. App. 334, 1971 N.C. App. LEXIS 1243 (N.C. Ct. App. 1971).

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Opinion

BROCK, Judge.

In determining child custody wide discretion is necessarily vested in the trial judge, who has the opportunity to see the parties and hear the witnesses, and his decision ought not to be upset on appeal absent a clear showing of abuse of discretion. In re Custody of Pitts, 2 N.C. App. 211, 162 S.E. 2d 524. It is perfectly clear from the findings of the trial judge why he did not award custody of the child to respondent (mother); therefore, his award of custody to petitioner (father) should not be upset on this appeal. The welfare of the child is always open to inquiry by the court, and upon showing of a change of circumstances the order of custody may be modified. G.S. 50-13.7 (a).

Respondent (mother) argues that the trial judge failed to find facts which justify his denial of an award of alimony pendente lite. The trial judge is not required to make negative findings. Upon the application of respondent (mother) for alimony pendente lite, the burden was upon her to establish (1) that she is entitled to relief in her action for alimony without divorce, and (2) that she does not have sufficient means whereon to subsist during the prosecution of her claim or to defray the necessary expenses thereof. G.S. 50-16.3. Respondent (mother) still has an opportunity to bring her action to trial on the merits.

No error.

Judges Britt and Vaughn concur.

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BROCK, Judge.

In determining child custody wide discretion is necessarily vested in the trial judge, who has the opportunity to see the parties and hear the witnesses, and his decision ought not to be upset on appeal absent a clear showing of abuse of discretion. In re Custody of Pitts, 2 N.C. App. 211, 162 S.E. 2d 524. It is perfectly clear from the findings of the trial judge why he did not award custody of the child to respondent (mother); therefore, his award of custody to petitioner (father) should not be upset on this appeal. The welfare of the child is always open to inquiry by the court, and upon showing of a change of circumstances the order of custody may be modified. G.S. 50-13.7 (a).

Respondent (mother) argues that the trial judge failed to find facts which justify his denial of an award of alimony pendente lite. The trial judge is not required to make negative findings. Upon the application of respondent (mother) for alimony pendente lite, the burden was upon her to establish (1) that she is entitled to relief in her action for alimony without divorce, and (2) that she does not have sufficient means whereon to subsist during the prosecution of her claim or to defray the necessary expenses thereof. G.S. 50-16.3. Respondent (mother) still has an opportunity to bring her action to trial on the merits.

No error.

Judges Britt and Vaughn concur.

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Bluebook (online)

185 S.E.2d 433, 13 N.C. App. 334, 1971 N.C. App. LEXIS 1243, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-custody-of-mason-ncctapp-1971.

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