Smith v. Burgess

Court of Appeals of North Carolina
Smith v. Burgess, 72 N.C. App. 340 (1985)
324 S.E.2d 53; 1985 N.C. App. LEXIS 3057
Johnson, Phillips, Webb

Smith v. Burgess

Opinion of the Court

PHILLIPS, Judge.

In child custody cases it is fundamental that if the trial court’s findings of fact do not support its conclusions of law the order resting thereon must be vacated and the cause remanded for a new hearing. Green v. Green, 54 N.C. App. 571, 284 S.E. 2d 171 (1981). The trial court’s pertinent findings of fact in this case were as follows:

3. On 9 March 1975, Paula Michelle Burgess was born to the plaintiff.
4. In December of 1977 the plaintiff signed a custody agreement whereby the custody of Paula Burgess was given to the defendants.
5. When Paula Burgess was born in March of 1975 and in December of 1977, the plaintiff was unmarried and unemployed and unable to provide a home for the minor child.
6. That the plaintiff married George David Smith on August 22, 1981, and now has a home which is a suitable residence for the minor child.
7. The plaintiff is a suitable and fit person to have custody of Paula Burgess.
8. That it is in the best interest of the minor child that she reside with her natural mother, the plaintiff.
*3439. That there has been a change of circumstances since the custody agreement of December 15, 1977, was entered into by the plaintiff and the defendants, to wit: the Plaintiff is now married, employed, and has a suitable home for the child.

Clearly, these findings are insufficient to support the court’s conclusions that the child’s best interests require that her custody be changed to the plaintiff. No finding was made as to either plaintiffs earnings or ability to care for and support the child, or as to why the best interests of the child will be served by removing her from the home that she has loved and done well in for eight and a half years. That plaintiff is now married and has both a job and a “suitable residence” for the child to live in does not dispense with the necessity of such or similar findings, which, of course, could not have properly been made from the evidence recorded. Though plaintiff testified that her husband receives $825 a month in G.I. benefits and thus might be in position to contribute to the child’s support, no evidence that he was willing to do so is recorded. Plaintiff’s testimony that her husband would look after the child when she returns home from school was not buttressed by testimony that he is either able, willing, or qualified to do so; and nothing is recorded concerning his absences from the home while attending school or who will be there to supervise and care for the child during the days of school vacation when plaintiff will be mostly asleep following her work at the factory. And no evidence was presented that the atmosphere or quality of life in the Smith household was such as likely to promote the security, stability and emotional well being of this child, who, according to the record, has been well and lovingly cared for by defendants ever since she was born. Indeed, the only testimony relating to all thereto, about the child being upset whenever she had been in the Smith house and he had yelled at plaintiff, tended to show otherwise.

While trial judges in child custody cases have great latitude in determining what the best interests of such children require, it is a latitude limited by the evidence in each case. And in this case the evidence presented so far, in our opinion, simply does not justify removing the child involved from the home in which she has been living so satisfactorily for so long.

*344Vacated and remanded.

Judges Webb and Johnson concur.

Reference

Full Case Name
SANDRA BURGESS SMITH v. JEAN BURGESS and EUGENE BURGESS
Cited By
1 case
Status
Published