concurring.
The sole question before the Court is this: Did the Court of Appeals commit error of law in reversing the decree of the For-syth County District Court awarding the custody of Fay Frances Spence (age 10) and Dianne Jeannene Spence (age 8) to their mother?
Beyond question, I think, the district court had jurisdiction of the children and all parties necessary to the determination of their custody. The district judge heard evidence, found facts, and based thereon, entered the custody order.
These questions of law were presented to the Court of Appeals for determination: (1) Did the evidence before the trial judge support his findings? and (2) Do the findings support the custody order? If the answer to both questions is “Yes,” the decision of the Court of Appeals should be reversed and the custody order should be affirmed. Byrd v. Thompson, 243 N.C. 271, 90 S.E. 2d 394.
Article IY, Sec. 12(1), Constitution of North Carolina, provides: “The Supreme Court shall have jurisdiction to review upon appeal any decision of the courts below, upon any matter of law or legal inference.” 1 Strong, N. C. Index 2d, under the heading Appeal and Error, lists many cases supporting the proposition that the jurisdiction of the Supreme Court on appeal is limited to questions of law or legal inference.
The Court of Appeals discussed the Georgia proceeding and the custody order to which the parties gave their consent. The decree established, as of the date of its entry, that the mother was not a suitable custodian. The decree, however, is subject to review upon a showing of material and' favorable *689changes in conditions. Griffin v. Griffin, 237 N.C. 404, 75 S.E. 2d 133. Neither the judgment of the Georgia court nor the agreement of the parties can bind the court and prevent a future hearing on the question of fitness. “No agreement or contract between husband and wife will serve to deprive the court of its inherent as well as statutory authority to protect the interests and provide for the welfare of infants. . . . The child is not a party to such agreement and the parents cannot contract away the jurisdiction of the court which is always alert in the discharge of its duty toward its wards — the children of the State whose personal or property interests require protection. ... In such case the welfare of the child is the paramount consideration . . . and the court will not suffer its authority in this regard to be either withdrawn or curtailed by any act of the parties.” Story v. Story, 221 N.C. 114, 19 S.E. 2d 136.
The Georgia decree established as of the date of its rendition the unfitness of the mother for the custody of her children. When a material and favorable change of condition does occur, the courts are open to review former orders and in light of facts existing at the time of the review make such disposition as will be to the best interest of the children. If the court has jurisdiction, and the evidence supports the facts found, which in turn support the judgment, other questions are not presented for decision on appeal. Bishop v. Bishop, 245 N.C. 573, 96 S.E. 2d 721. “The findings of fact by the court, there being evidence on both sides, is binding and conclusive on appeal.” Shoaf v. Frost, 127 N.C. 306, 37 S.E. 271; In Re Hamilton, 182 N.C. 44, 108 S.E. 385.
Judge Clifford who heard the witnesses and observed their demeanor as they testified was in a favored position to ascertain the truth. He entered an interlocutory order on July 20, 1971, giving the mother temporary custody. After keeping up with the case until December 20, 1971, he entered the order now under review. The order contains the following:
“5. The two children, Fay and Dianne, while in the custody of their mother, Mrs. Susan Durham Spence, have at all times been well, fully and adequately cared for.
“6. The plaintiff, Susan Durham Spence, is a well educated and intelligent woman who has, since moving to Winston-Salem in the latter part of 1969, established a successful and growing speech therapy clinic for children and *690adults. She has rented and furnished a two bedroom apartment in one of the better sections of Winston-Salem which is adequate in all respects for a home for herself and Fay and Dianne. Susan Durham Spence is respected in this community by professional people with whom she deals and is a person of high character and reputation. She is an active member of Trinity Methodist Church where she participates in religious training for children and sings in the choir. She is a person exceptionally well qualified by training and experience to rear children and is in all respects a fit and proper person to have the custody of her two minor children who are subject to this action.
“7. Fay and Dianne Spence have for more than two years resided in the City of Winston-Salem except for holidays and summer vacations. All of their schooling and maintenance and upkeep while in Winston-Salem have been paid for by their mother and maternal grandparents and their father has contributed nothing to their maintenance or schooling or upkeep since June of 1969. The two children have established excellent associations and records in school since they moved here in 1969 and their best interests will be served by their continuing to live and being schooled in this city. It is against the best interest of the children to be moved for extended periods of time and on their holidays from their primary environment. The best interest of these two minor children shall be served by their custody being awarded to their mother, Susan Durham Spence.”
Notwithstanding the above, the Court of Appeals not only declared the evidence did not support the findings, but that the findings did not support the judgment.
Particularly in custody cases the trial judge not only is in a position to observe the witnesses, but in this case he observed the parent and the children in the presence of each other. Appellate courts should be slow to take over the job of re-weighing the evidence.
Under our system, appellate courts are not permitted to enter the fact finding field. They should pass on questions of law or legal inference and leave the facts and the equities to the trial court. After all, the chancellor is not given a seat on courts of appeal.
*691I join in Justice Sharp’s opinion.