Todd v. Todd, 18 N.C. App. 458 (1973)

June 13, 1973 · North Carolina Court of Appeals · No. 7321DC309

18 N.C. App. 458

WANDA TODD v. JAMES KYLE TODD

No. 7321DC309

(Filed 13 June 1973)

Divorce and Alimony § 24; Infants § 9— custody by mother — overnight visits by male friend — no substantial change in circumstances

The trial court did not make sufficient findings of a substantial change of circumstances to support modification of a child custody order transferring custody from the mother to the father where the court found the mother had allowed a male friend to spend numerous nights and weekends in her home and in the presence of the child, the court found the mother had permitted such visitations prior to the former order, and the court failed to find there was any adulterous relationship between the mother and her male friend or that the mother had become an unfit person to have custody of the child.

Appeal by plaintiff from SherJc, Judge, 9 November 1972 Session of Forsyth District Court.

Plaintiff instituted this action on 20 December 1971 to have the court determine custody of Tammy Victoria Todd, a child born to the marriage of the parties on 9 February 1967, and specify the amount of child support defendant should pay. The parties were married to each other on 12 June 1966 and separated in July of 1971.

On 31 January 1972, following a hearing, Judge Sherk entered an order finding that both plaintiff and defendant were fit and proper persons to have custody of the child but at that time the best interest of the child required that her custody be awarded to plaintiff. Custody was awarded to plaintiff, with visitation rights given to defendant who was ordered to pay $30.00 per week child support. There was no appeal from that order.

On 13 June 1972 defendant filed a motion in the cause alleging that since the above mentioned order was entered, plaintiff had been living in adultery with one Ralph Brunett and that plaintiff was no longer a fit and proper person to have custody of the child; defendant asked that he be awarded custody.

On 30 November 1972, following a hearing by the court and an investigation by a family counselor of the Domestic Division of the District Court, Judge Sherk entered an order summarized in pertinent part as follows:

(1) Finding that “prior to said (31 January 1972) order and since said order the plaintiff has allowed one Ralph Brunett to spend numerous nights and weekends in the home of plaintiff and in the presence of the said minor child.”

(2) Finding that it would be in the best interest of said child that the order previously entered be changed whereby defendant would be awarded the exclusive custody, care and control of said child with plaintiff given certain visitation rights.

(3) Ordering that exclusive custody, care and control of the child be awarded to defendant, with specified visitation privileges in plaintiff.

Plaintiff appealed from the order.

White and Crumpler by Fred G. Crumpler, Jr., and Michael J. Lewis for plaintiff appellant.

Wilson and Morrow by Harold R. Wilson and John F. Morrow for defendant appellee.

BRITT, Judge.

• Plaintiff contends that the trial court erred in entering the order modifying a previous custody order without a finding of substantial change in circumstances affecting the welfare of the child. The contention has merit.

G.S. 50-13.7(a) provides: “An order of a court of this State for custody or support, of both, 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.” Our courts have held that before a custody order may be altered a substantial change of circumstances must be shown. Crosby v. Crosby, 272 N.C. 235, 158 S.E. 2d 77 (1967) ; Rothman v. Rothman, 6 N.C. App. 401, 170 S.E. 2d 140 (1969).

We do not think the trial court made sufficient findings of substantial change of circumstances to support the order transferring custody of the child from plaintiff to defendant. While the court found that plaintiff had allowed a male friend to spend numerous nights and weekends in her home and “in the presence of” the child, the court found that plaintiff had permitted visitations by her male friend prior to the former order and failed to find that there was any adulterous relationship between plaintiff and said friend. In its previous order the court found that both plaintiff and defendant were fit and proper persons to have custody of the child; in the order appealed from the court made no finding that plaintiff had become an unfit person to have custody of the child.

For the reasons stated, the order appealed from is vacated and this cause is remanded for further proceedings not inconsistent with this opinion.

Remanded.

Judges Hedrick and Baley concur.