Summary
permitting change in custody where evidence showed that child "will be adversely affected if custody is not changed"
Summary of this case from Ramirez-Barker v. BarkerOpinion
No. 8521DC70
Filed 17 September 1985
Divorce and Alimony 25.9 — child custody — rehabilitation from alcoholism — change in circumstances Where plaintiff had lost custody of her child to the father because of a problem with alcohol abuse, the mother's substantial progress in rehabilitation from alcoholism constituted a sufficient change in circumstances to support the trial court's return of custody of the child to plaintiff mother.
APPEAL by defendant from Harrill, Judge. Judgment entered 17 August 1984 in District Court, FORSYTH County. Heard in the Court of Appeals 29 August 1985.
Sparrow Bedsworth, by W. Warren Sparrow and George A. Bedsworth, for plaintiff appellee.
Wolfe and Collins, by John G. Wolfe, III, for defendant appellant.
Judge BECTON concurring in the result.
Judge MARTIN dissenting.
The defendant appeals from an order changing the custody of a minor. The parties had been married but were divorced on 13 April 1981. The custody of the only child born to the marriage was awarded to the plaintiff in the divorce decree in which decree was incorporated by reference a separation agreement and consent judgment which gave custody to the plaintiff.
On 8 June 1983 the defendant made a motion in the cause that he be given custody of the child. At that time the plaintiff was receiving treatment for alcoholism. She had been in an institution twice in connection with alcohol abuse and had been involved in an automobile accident while intoxicated in which the child was injured. The court on 23 August 1983 gave the custody of the child to the defendant and ordered that a hearing be held in June 1984 should the plaintiff request it to determine the best interest of the child at that time.
In the summer of 1984 the plaintiff made a motion for change of custody. On 9 August 1984 a hearing was held on the plaintiff's motion. On 17 August 1984 the court entered an order in which it found facts to the effect that she had made substantial progress in rehabilitation from alcoholism and her"accomplishments . . . constitute a material change of circumstances affecting the welfare of the child." The court ordered the custody returned to the plaintiff. The defendant appealed.
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. 50-13.7 (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. 50-13.7 (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 plaintiff's problem with alcohol the best interest of the child would be served by continuing custody with the plaintiff. When the plaintiff's 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 which 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.