Morgan v. Morgan

Court of Appeals of North Carolina

Morgan v. Morgan

202 S.E.2d 356, 20 N.C. App. 641, 1974 N.C. App. LEXIS 2513

CourtCourt of Appeals of North Carolina

DecidedFebruary 6, 1974

Docket7328DC697

StatusPublished

Cited by10 cases

This text of 202 S.E.2d 356 (Morgan v. Morgan) 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.

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Morgan v. Morgan, 202 S.E.2d 356, 20 N.C. App. 641, 1974 N.C. App. LEXIS 2513 (N.C. Ct. App. 1974).

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Opinion

*642 BROCK, Chief Judge.

Plaintiff filed in this Court a separate motion to dismiss the appeal. Consideration of the motion was postponed until after arguments. Plaintiff’s motion to dismiss is now denied.

We do not comment upon the evidence offered at trial because there must be a new trial.

The trial judge failed to make findings of fact to establish the reasonable needs of the plaintiff or the reasonable needs of the daughter to maintain a standard of living commensurate with that to which they had become accustomed while living with defendant. There must also be a full consideration of the ability of the supporting spouse to make the payments decreed. We make no comment concerning the amount of the payments required of defendant because we are unable to determine what evidence or facts were considered by the trial judge.

It is not necessary for the trial judge to make detailed findings of fact upon each item of evidence offered at trial. It is necessary, however, that he make the material findings of fact which resolve the issues raised. In each case the findings of fact must be sufficient to allow an appellate court to determine upon what facts the trial judge predicated his judgment.

With regard to visitation rights granted defendant by the trial judge, the decree provides: “That said visitations shall be subject to the consent of Peggy Morgan and shall be discretionary with said child.” Regardless of the specificity of the visitation privileges which preceded the above quoted provision, the latter provision renders the decree nugatory at the discretion of the daughter. While we realize that the preferences of a 14 year old are entitled to some weight in determining custody and visitation rights, it is error to allow the minor to dictate, at will from time to time, whether the judgment of the court is to be honored.

The judgment is vacated and a new trial is ordered.

New trial.

Judges Britt and Morris concur.

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*642 BROCK, Chief Judge.

Plaintiff filed in this Court a separate motion to dismiss the appeal. Consideration of the motion was postponed until after arguments. Plaintiff’s motion to dismiss is now denied.

We do not comment upon the evidence offered at trial because there must be a new trial.

The trial judge failed to make findings of fact to establish the reasonable needs of the plaintiff or the reasonable needs of the daughter to maintain a standard of living commensurate with that to which they had become accustomed while living with defendant. There must also be a full consideration of the ability of the supporting spouse to make the payments decreed. We make no comment concerning the amount of the payments required of defendant because we are unable to determine what evidence or facts were considered by the trial judge.

It is not necessary for the trial judge to make detailed findings of fact upon each item of evidence offered at trial. It is necessary, however, that he make the material findings of fact which resolve the issues raised. In each case the findings of fact must be sufficient to allow an appellate court to determine upon what facts the trial judge predicated his judgment.

With regard to visitation rights granted defendant by the trial judge, the decree provides: “That said visitations shall be subject to the consent of Peggy Morgan and shall be discretionary with said child.” Regardless of the specificity of the visitation privileges which preceded the above quoted provision, the latter provision renders the decree nugatory at the discretion of the daughter. While we realize that the preferences of a 14 year old are entitled to some weight in determining custody and visitation rights, it is error to allow the minor to dictate, at will from time to time, whether the judgment of the court is to be honored.

The judgment is vacated and a new trial is ordered.

New trial.

Judges Britt and Morris concur.

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Bluebook (online)

202 S.E.2d 356, 20 N.C. App. 641, 1974 N.C. App. LEXIS 2513, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morgan-v-morgan-ncctapp-1974.

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