Walker v. Walker

224 N.C. 751

Opinion

WiNBORNE, J.

This is the question posed by appellant: “Did the presiding judge err, in his discretion, in awarding custody of the child in question to the respondent?”

To this question the statute, Gr. S., 50-13, formerly O. S., 1664; Be-visal, 1570, Code, 1296, in language and as applied in decisions of this Court, affords a negative answer. See Setzer v. Setzer, 129 N. O., 296, 40 S. E., 62; Sanders v. Sanders, 167 N. C., 317, 83 S. E., 489; Story v. Story, 221 N. C., 114, 19 S. E. (2d), 136. This statute provides that: “After the filing of a complaint in any action for divorce, whether from the bonds' of matrimony or from bed and board, both before and after final judgment therein, it is lawful for the judge of the court in which such application is or was pending to make such orders respecting the care, custody, tuition and maintenance of the minor children of the marriage as may be proper, and from time to time to modify or vacate such orders, and may commit their custody and tuition to the father or mother, as may be thought best . . .” Applying this statute, the decisions of this Court hold that the question of granting the custody and tuition of the child to the father or mother is discretionary with the court. Setzer v. Setzer, supra; Sanders v. Sanders, supra; and Story v. Story, supra. The welfare of the child is the paramount consideration, or, as stated In re Lewis, 88 N. C., 31, “the polar star by which the discretion of the court is to be guided.”

In the present case, upon the facts found, the best interest of the child expressly appears as the polar star by which the discretion of the court was guided.

Furthermore, in. providing for the child to remain within and subject to the jurisdiction of the courts of this State, there is no abuse of discretion.

Affirmed.