Perdue v. Perdue

Court of Appeals of North Carolina

Perdue v. Perdue

334 S.E.2d 86, 76 N.C. App. 600

CourtCourt of Appeals of North Carolina

DecidedSeptember 17, 1985

Docket8521DC70

StatusPublished

Cited by6 cases

This text of 334 S.E.2d 86 (Perdue v. Perdue) 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

Perdue v. Perdue, 334 S.E.2d 86, 76 N.C. App. 600 (N.C. Ct. App. 1985).

Pincite

Opinions

WEBB, Judge.

This appeal brings to the Court a question as to whether there has been a sufficient change in circumstance to return the custody of the parties’ child to the plaintiff. G.S. § 5043.7(a) provides in part,- “an order of a court of this State for custody of a minor child 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.” The appellant, relying on Harris v. Harris, 56 N.C. App. 122, 286 S.E. 2d 859 (1982) and Daniels v. Hatcher, 46 N.C. App. 481, 265 S.E. 2d 429, disc. rev. denied, 301 N.C. 87 (1980) argues that the courts of this state “have expanded the statutory language of G.S. 5043.7(a)” to require for a change in custody not only a change in circumstance as stated in the statute but a change in circumstance which will adversely affect the child if custody is not changed. There is language to this effect in the cases cited by the defendant and in other cases. See Clark v. Clark, 294 N.C. 554, 243 S.E. 2d 129 (1978); Tucker v. Tucker, 288 N.C. 81, 216 S.E. 2d 1 (1975); and Blackley v. Blackley, 285 N.C. 358, 204 S.E. 2d 678 (1974). We believe this language must be interpreted in the light of a maxim of these cases that a district court judge has a broad discretion in determining custody. In this case it is evident the court felt in the summer of 1983 that except for the plaintiffs problem with alcohol the best interest of the child would be served by continuing custody with the plaintiff. When the plaintiffs problem was ameliorated this change in circumstance removed the obstacle to making it in the child’s best interest to be with her mother. In the summer of 1984 the best interest of the child would be served by awarding custody to the plaintiff. This means the change of circumstance is such within the meaning of the language of the cases that the child will be adversely affected if custody is not changed.

We believe we are bound by Spence v. Durham, 283 N.C. 671, 198 S.E. 2d 537 (1973) to hold that the findings of fact support the district court’s order in this case. One of the facts in that case [602]*602which our Supreme Court held supported a finding of change in circumstance sufficient for an order for change of custody was that the mother had been emotionally unstable at the time of the hearing at which she was deprived of custody but was emotionally stable at the time of the hearing at which custody was returned to her. In this case the child was taken from the mother because of her problem with alcohol. When the court found this problem had been alleviated it could under Spence return the custody of the child to the plaintiff.

We hold that on the facts found in this case the court did not abuse its discretion.

Affirmed.

Judge BECTON concurs. Judge MARTIN dissents.

Free access — add to your briefcase to read the full text and ask questions with AI

WEBB, Judge.

This appeal brings to the Court a question as to whether there has been a sufficient change in circumstance to return the custody of the parties’ child to the plaintiff. G.S. § 5043.7(a) provides in part,- “an order of a court of this State for custody of a minor child 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.” The appellant, relying on Harris v. Harris, 56 N.C. App. 122, 286 S.E. 2d 859 (1982) and Daniels v. Hatcher, 46 N.C. App. 481, 265 S.E. 2d 429, disc. rev. denied, 301 N.C. 87 (1980) argues that the courts of this state “have expanded the statutory language of G.S. 5043.7(a)” to require for a change in custody not only a change in circumstance as stated in the statute but a change in circumstance which will adversely affect the child if custody is not changed. There is language to this effect in the cases cited by the defendant and in other cases. See Clark v. Clark, 294 N.C. 554, 243 S.E. 2d 129 (1978); Tucker v. Tucker, 288 N.C. 81, 216 S.E. 2d 1 (1975); and Blackley v. Blackley, 285 N.C. 358, 204 S.E. 2d 678 (1974). We believe this language must be interpreted in the light of a maxim of these cases that a district court judge has a broad discretion in determining custody. In this case it is evident the court felt in the summer of 1983 that except for the plaintiffs problem with alcohol the best interest of the child would be served by continuing custody with the plaintiff. When the plaintiffs problem was ameliorated this change in circumstance removed the obstacle to making it in the child’s best interest to be with her mother. In the summer of 1984 the best interest of the child would be served by awarding custody to the plaintiff. This means the change of circumstance is such within the meaning of the language of the cases that the child will be adversely affected if custody is not changed.

We believe we are bound by Spence v. Durham, 283 N.C. 671, 198 S.E. 2d 537 (1973) to hold that the findings of fact support the district court’s order in this case. One of the facts in that case [602]*602which our Supreme Court held supported a finding of change in circumstance sufficient for an order for change of custody was that the mother had been emotionally unstable at the time of the hearing at which she was deprived of custody but was emotionally stable at the time of the hearing at which custody was returned to her. In this case the child was taken from the mother because of her problem with alcohol. When the court found this problem had been alleviated it could under Spence return the custody of the child to the plaintiff.

We hold that on the facts found in this case the court did not abuse its discretion.

Affirmed.

Judge BECTON concurs. Judge MARTIN dissents.

Cite This Page — Counsel Stack

Bluebook (online)

334 S.E.2d 86, 76 N.C. App. 600, Counsel Stack Legal Research, https://law.counselstack.com/opinion/perdue-v-perdue-ncctapp-1985.

Opinions

Related

Cite This Page — Counsel Stack