In Re Gibbons

Bobbitt, J.,

dissenting: The former appeal by petitioner was from an order of Judge Hobgood. On sufficient findings of fact, he awarded to Guy A. Gibbons, Sr., respondent, “the custody, care and control and tuition of Guy A. Gibbons, Jr.” In re Gibbons, 245 N.C. 24, 95 S.E. 2d 85. This order was vacated and the cause remanded for further hearing. Decision was based in part upon the refusal of the court to permit petitioner to examine Guy A. Gibbons, Jr., in open court, and upon the fact, as stated in Judge Hobgood’s findings, that the judge, without the consent of petitioner, had held “three conferences in chambers with Guy A. Gibbons, Jr. without either Mr. or Mrs. Bright or Mr. or Mrs. Guy A. Gibbons, Sr. being present, this being done with the view of obtaining full knowledge of the child’s problems and attachment with reference to the petitioner and the respondent.”

This appeal by petitioner is from an order of Judge Carr who, after extended hearings and full consideration, awarded custody to Guy A. Gibbons, Sr. The parties consented that Judge Carr might confer privately with Guy A. Gibbons, Jr. Neither petitioner nor respondent requested permission to examine Guy A. Gibbons, Jr., in open court. Judge Carr, like Judge Hobgood, had the advantage of impressions derived from personal contacts, observations and conversations. It is significant that both reached the same conclusion.

The established rule is stated by Rodman, J., in opinion on former appeal, as follows: “The findings of fact made by the trial judge, like a jury verdict, conclude the parties and are binding on us when supported by competent evidence received at a properly constituted hearing.”

Our function is to determine whether the court below acted under misapprehension of law or failed to apply pertinent legal principles. It is not our function to find facts, thereby resolving *284conflicts in evidence. The underlying reason for the rule is that the hearing judge has the opportunity to observe the parties and the witnesses. An appellate court considers only the cold record.

I cannot say whether, had I been in Judge Carr’s place, I would have reached the same conclusion. But this is not the responsibility of this Court. Hence, I refrain from observations bearing upon the relative fitness and suitability of petitioner and of respondent. Certainly, there is nothing in the conduct of the Brights that invites censure.

Guy A. Gibbons, Sr., the adoptive father, has the legal responsibility for his adopted son. Nothing else appearing, he has the legal right to custody. While much may be said in favor of the Brights, the fact remains that petitioner has neither legal responsibility for Guy A. Gibbons, Jr., nor legal right to custody.

Thus, Judge Carr was right, in my opinion, when he gave heed to what was said by this Court in James v. Pretlow, 242 N.C. 102, 86 S.E. 2d 759, to wit: “Where one parent is dead, the surviving parent has a natural and legal right to the custody and control of their minor children. This right is not absolute, and it may be interfered with or denied but only for the most substantial and sufficient reasons, and is subject to judicial control only when the interests and welfare of the children clearly require it.” (Italics added.) I regard this as a correct statement of a sound legal proposition.

Attention is called to these positive findings of fact by Judge Carr:

“1. The Brights and the Gibbons families differ in their methods of disciplinary control over the child. The Brights are inclined toward leniency and Mr. and Mrs. Gibbons towards strictness almost bordering on severity. Arguments can be made in support of each method. The method of the Brights appeals to the child and causes him to think the Brights love him more generously than Mr. and Mrs. Gibbons. Hence he is very fond of Mr. and Mrs. Bright.
“2. The child is not a neglected child, as alleged in the petition and the amended petition. The said Guy A. Gibbons, Sr. has not abandoned said child, as alleged in said amended petition.
“3. Both couples, Mr. and Mrs. Bright and Mr. and Mrs. Gibbons, are fit and proper persons to have the custody of said child.
“4. (Quoted in opinion of Court.)
“5. The Brights in 1950, realizing that they were becoming attached to the child, requested Gibbons to take him, but he declined to do so. After Gibbons remarried in 1952, the conduct and attitude of Gibbons and his wife was such as to give the *285Brights notice that Gibbons would ultimately ask them to let him have the child and this was made more apparent to the Brights in the year 1953.
“6. The contest between the Bright and Gibbons families in respect to the custody of the child has created a situation whereby the child’s best interest requires that for the time being he be placed in the custody of one or the other and that the Order should not provide for any visitation of the child to the one who is not awarded the custody.”

Under the caption, “Conclusions of Law,” Judge Carr reaches this conclusion: “Upon the foregoing findings of fact the Court is of the opinion that it does not appear that the best interests of the child clearly require that he be taken away from his father, who has duly and legally adopted him and for whom the child was named.” The phraseology of this conclusion, which is a composite of fact and of law, follows closely the course indicated by this Court in James v. Pretlow, supra, as appropriate where one who has no legal right to custody or legal responsibility for the child seeks to obtain custody from one who has a legal right thereto as well as legal responsibility for the child. The essential meaning of the rule stated in James v. Pretlow, supra, is that a parent, who has legal responsibility for his child and who is a fit and proper person to have custody, is entitled to custody unless for the most substantial and sufficient reasons the interests and welfare of the child clearly require that custody be awarded to another.

It is noted that Guy A. Gibbons, Sr., has had custody of Guy A. Gibbons, Jr., since August 1, 1954. It is quite evident that the superior court judges who observed the boy and talked with him did not think he had been harmed by this custody.

Of course, the welfare of Guy A. Gibbons, Jr., and his own wishes, should have been considered by the hearing judge. Nothing appears to indicate that Judge Carr did not consider these matters. Rather, it appears that Judge Carr made his findings and reached his conclusions after making appraisal of all relevant factors, including the impressions he gained from personal contacts with the boy. Are we to judge the weight he should have given to each phase of the evidence?

Judge Carr, feeling the weight of his responsibility, made provision that respondent be observed, particularly with reference to drinking intoxicating beverages. This, in my view, should not be interpreted as lack of confidence in his decision, but rather as a means of safeguarding the best interests of the boy if future events should require a reconsideration of the cause.

I would affirm the judgment of Judge Carr. But, apart from that, since the cause is remanded for a third superior court hearing, I would make it clear that, upon such further hearing, *286the judge should weigh the evidence and find the facts according to his, not our, judgment. My principal concern is that the review of facts appearing in the Court’s opinion will be construed as a virtual directive to the next superior court judge to award custody to petitioner. I, for one, have no such thought in mind. As to the facts, these are matters for determination by the superior court judge; and I do not want the next judge to feel “cramped” in respect thereof by what is said by this Court in the opinion filed today.

Rodman, J., concurs in dissent.