Tucker v. Tucker , 288 N.C. 81 ( 1975 )

216 S.E.2d 1 (1975) 288 N.C. 81

Mamie Pauline Pegram TUCKER
v.
Melvin Clarence TUCKER, Jr.

No. 118.

Supreme Court of North Carolina.

June 26, 1975.

Younce, Wall & Suggs by Adam Younce and Peter F. Chastain, Greensboro, for plaintiff appellant.

No counsel contra.

MOORE, Justice.

Following the hearing on 30 July 1974, Judge Alexander found facts, in part, as follows:

"That the Court finds further that each [parent] has engaged in a course of conduct to consciously attempt to destroy the other and that the boy has been used by both as a tool to accomplish this result.. . . [T]hat neither of the parents are [sic] fit to have custody; that both the parties hereto are honorable people, and enjoy a good reputation, but custody in either of the parents under the present circumstances would be detrimental to the minor child and his emotional well-being."

Based upon her findings, Judge Alexander concluded as a matter of law:

"That neither Mamie Pauline Pegram Tucker nor Melvin Clarence Tucker, Jr. are [sic] fit and proper persons to have the care and custody of the minor child, Timmy Joe Tucker; that Clarence Michael Tucker and wife and Hilton Wayne Tucker are both fit and proper persons to have the care and custody of Timmy Joe Tucker, but that Clarence Michael Tucker and wife are the most fit and capable persons to have the care and custody of Timmy Joe Tucker; that it is for the best interest of said minor to grant custody to Clarence Michael Tucker and wife; that the Defendant, Melvin Clarence Tucker, Jr., is in contempt of Court as a matter of law."

Judge Alexander then ordered:

"1. The Court reserves the disposition of the Defendant for being in contempt of Court for further orders of the Court.

"2. That Clarence Michael Tucker and wife are given exclusive care and custody of Timmy Joe Tucker.

"3. That Clarence Michael Tucker and wife shall allow visitation by either of the parents at their pleasure, and at their convenience; that neither the Plaintiff nor the Defendant shall interfere with, harass or otherwise upset or bother Clarence Michael Tucker and wife in their exclusive custody of Timmy Joe Tucker.

"4. That the one-acre [sic] of tobacco and the proceeds therefrom shall be for the support of Timmy Joe Tucker.

"5. That this matter is retained for further Orders of this Court. This order is signed out of term by agreement of the parties."

The question presented by this appeal is whether there was sufficient evidence of change in circumstances affecting the welfare of Timmy to justify modification of the order of 7 June 1974 and other orders prior thereto, all of which placed him in custody of his mother, and to justify the order of 7 August 1974 which removed him from the custody of his mother and granted exclusive custody to Clarence Michael Tucker and his wife.

At the outset it should be noted that this matter was heard on 30 July 1974 on an order of the court, issued on motion of plaintiff, directing defendant to show cause why he should not be held in contempt for disobedience of former orders of the court granting plaintiff custody of her son. After this hearing, the court for the fourth time found defendant in contempt and in addition entered an order granting Clarence Michael Tucker and his wife custody of Timmy. Neither Clarence nor his wife was a party to this action. This order was based to a large extent upon two brief, written reports of social workers in Guilford and Rockingham Counties, neither of which contained statements of these workers that plaintiff was not a fit and proper person to have custody of her child. At the hearing several witnesses testified that plaintiff is a fine Christian woman and is a fit and proper person to have the custody of Timmy. Two other district court judges and Judge Alexander at a former hearing on this matter found this to be true. As late as 7 June 1974, Judge Alexander found: "The plaintiff is a fit, suitable and proper person to have the care, custody and control of Timmy and it would be in the best interest of and to the best interest of Timmy that he be in the exclusive care, custody and control of the plaintiff."

Our Court has consistently held that the trial judge, who has the opportunity to see and hear the parties and the witnesses, is vested with broad discretion in cases involving the custody of children. Blackley v. Blackley, 285 N.C. 358, 204 S.E.2d 678 (1974); Swicegood v. Swicegood, 270 N.C. 278, 154 S.E.2d 324 (1967); Hinkle v. Hinkle, 266 N.C. 189, 146 S.E.2d 73 (1966). The welfare of the child is the paramount consideration that must guide the court in exercising this discretion. Blackley v. Blackley, supra; Stanback v. Stanback, 266 N.C. 72, 145 S.E.2d 332 (1965); Thomas v. Thomas, 259 N.C. 461, 130 S.E.2d 871 (1963).

An order pertaining to the custody of the child does not finally determine the rights of parties as to the custody, care and control of a child, and when a substantial change of condition affecting the child's welfare is properly established, the court may modify prior custody decrees. G.S. § 50-13.7. Blackley v. Blackley, supra; Teague v. Teague, 272 N.C. 134, 157 S.E.2d 649 (1967); In re Herring, 268 N.C. 434, 150 S.E.2d 775 (1966). However, the modification of a custody decree must be supported by findings of fact based on competent evidence that there has been a substantial change in circumstances affecting the welfare of the child, and the party moving for such modification has the burden of showing such change of circumstances. Blackley v. Blackley, supra; Shepherd v. Shepherd, 273 N.C. 71, 159 S.E.2d 357 (1968); Crosby v. Crosby, 272 N.C. 235, 158 S.E.2d 77 (1967). As stated by Justice Branch in Shepherd v. Shepherd, supra, 273 N.C. at 75, 159 S.E.2d at 361:

"A decree of custody is entitled to such stability as would end the vicious litigation so often accompanying such contests, unless it be found that some change of circumstances has occurred affecting the welfare of the child so as to require modification of the order. To hold otherwise would invite constant litigation by a dissatisfied party so as to keep the involved child constantly torn between parents and in a resulting state of turmoil and insecurity. This in itself would destroy the paramount aim of the court, that is, that the welfare of the child be promoted and subserved.

"We hold that there must be a finding of fact of changed conditions before an order may be entered modifying a decree of custody. . . ."

As a general rule in this State, parents have the natural and legal right to the custody, companionship, control, and bringing up of their infant children, and this right may not lightly be denied or interfered with by action of the courts. This right is not absolute, however, and it may be interfered with or denied for substantial and sufficient reasons, and is subject to judicial control when the interest and welfare of the children clearly require it. Brake v. Mills, 270 N.C. 441, 154 S.E.2d 526 (1967); Shackleford v. Casey, 268 N.C. 349, 150 S.E.2d 513 (1966); Spitzer v. Lewark, 259 N.C. 50, 129 S.E.2d 620 (1963); James v. Pretlow, 242 N.C. 102, 86 S.E.2d 759 (1955). See generally 3 Lee, N.C. Family Law § 224 (3rd ed. 1963); Annot., 31 A.L.R. 3d 1187.

There is no evidence in this record of any substantial change in conditions affecting the welfare of Timmy between 7 June 1974 and 7 August 1974. The friction between the parents had existed from the date of the first custody order in 1973. In fact, all of the evidence as to this friction and its effect on Timmy indicates that the court, not plaintiff, should probably bear the major responsibility. Four times defendant was cited to show cause why he should not be held in contempt for disobedience of the court's orders granting plaintiff custody of Timmy. Four times and by three different district court judges defendant was found to be in contempt and four times the court did nothing to enforce compliance. It is no wonder that Timmy failed to obey his mother. The court encouraged that disobedience by its failure to enforce its own orders. Even in the final order removing Timmy from the custody of his mother, the court again found that defendant had violated previous orders and was in contempt, but again failed to take action to enforce compliance.

One of the social workers who made an investigation at Judge Alexander's request recognized that the failure of the court to enforce its orders had aggravated the matter when she reported to the court:

"It is worker's impression that Timmy is indeed caught in the middle of his parents' marital problems. Since Mr. and Mrs. Tucker live so close to one another and since previous court orders seem to have been ineffective, Timmy's placement in a brother's home or that of some other relative seems a viable avenue to consider at this point." (Emphasis added.)

We agree that in view of the court's failure to act to enforce its orders, Timmy's placement in his brother's home or that of some other relative was a viable solution to consider. However, we believe that a more viable solution would be for the court to enforce its several orders finding defendant in contempt by sentencing him to jail if necessary to assure compliance with former orders and to prevent him from interfering with plaintiff's custody of her child.

Surely, a mother who on four occasions goes into court to ask that it enforce its orders granting her custody of her minor son deserves more consideration than to have an order entered by that court depriving her of the custody of that child. In Spence v. Durham, 283 N.C. 671, 198 S.E.2d 537 (1973), Justice Sharp, now Chief Justice, quoted with approval from 2 Nelson, Divorce and Annulment § 15.09 (2d ed. 1961), as follows:

"It is universally recognized that the mother is the natural custodian of her young. . . . If she is a fit and proper person to have the custody of the children, other things being equal, the mother should be given their custody, in order that the children may not only receive her attention, care, supervision, and kindly advice, but also may have the advantage and benefit of a mother's love and devotion for which there is no substitute.. . ."

We do not think that there was sufficient evidence to support a finding that there had been a substantial change of circumstances affecting the welfare of Timmy from 7 June 1974, the date of the last order granting the mother custody, to 7 August 1974, the date of the order depriving her of that custody, see Blackley v. Blackley, supra; or that there was convincing proof that plaintiff is an unfit person to have the custody of her son. see James v. Pretlow, supra.

For the reasons stated, the decision of the Court of Appeals is reversed and the case is remanded to that court with direction to remand to the District Court of Guilford County for entry of judgment reversing the order of that court granting Clarence Michael Tucker and his wife custody of Timmy Joe Tucker, and directing that court to enter an order returning the custody of Timmy Joe Tucker to his mother, the plaintiff herein, in accordance with the order entered by Judge Alexander on 7 June 1974, and with the further direction that the District Court of Guilford County proceed to dispose of the contempt proceedings against defendant in accordance with law.

Reversed and remanded.