{
  "id": 8551854,
  "name": "CHARLES WILTON THORNE v. VIOLET LEE THORNE",
  "name_abbreviation": "Thorne v. Thorne",
  "decision_date": "1970-12-16",
  "docket_number": "No. 707DC647",
  "first_page": "151",
  "last_page": "154",
  "citations": [
    {
      "type": "official",
      "cite": "10 N.C. App. 151"
    }
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  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
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    {
      "cite": "86 S.E. 2d 759",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1955,
      "opinion_index": 0
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    {
      "cite": "242 N.C. 102",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8610043
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      "opinion_index": 0,
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    {
      "cite": "150 S.E. 2d 513",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1966,
      "opinion_index": 0
    },
    {
      "cite": "268 N.C. 849",
      "category": "reporters:state",
      "reporter": "N.C.",
      "year": 1966,
      "opinion_index": 0
    },
    {
      "cite": "165 S.E. 2d 1",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1969,
      "opinion_index": 0
    },
    {
      "cite": "3 N. C. App. 390",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8555095
      ],
      "year": 1969,
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/3/0390-01"
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  "analysis": {
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  "last_updated": "2023-07-14T19:51:53.441044+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Campbell and Britt concur."
    ],
    "parties": [
      "CHARLES WILTON THORNE v. VIOLET LEE THORNE"
    ],
    "opinions": [
      {
        "text": "HEDRICK, Judge.\nThe plaintiff excepted to and assigns as error the following portion of the court\u2019s findings of fact:\n\u201cThat the defendant\u2019s mother is a fit, suitable, proper and c\u00f3mpetent person to have the care and custody of her four year old grandson, Tony, and the best interest of said child would be served and his general welfare enhanced by the assignment of his custody to the defendant\u2019s mother.\u201d\nThe plaintiff also excepted to and assigns as error the court\u2019s entry of the order awarding the custody of the child to the maternal grandmother.\nThese exceptions present the question of whether the finding of fact challenged by the plaintiff is supported by competent evidence and whether the order entered is supported by appropriate findings of fact and conclusions of law.\nThat portion of the \u201cOrder for Custody of Child\u201d challenged by the appellant >was denominated by the court as a finding of fact. The appellant insists that it is a conclusion of law. If it be a finding of fact, it is unsupported by any evidence in this record. If it be a conclusion of law, it is not supported by any finding of fact. The only evidence in the record regarding the maternal grandmother tends to show that she is sixty-two years of age; that she is employed every other day from 6:30 a.m. to 6:30 p.m., and that she lives with her eighty-year-old husband. The record is silent as to how \u201cthe best interest of said child would be served and his general welfare enhanced by the assignment of his custody to the defendant\u2019s mother.\u201d The court made findings of fact with respect to the plaintiff, father, as follows:\n\u201cOn the other hand, the plaintiff, Charles Wilton Thorne, the child\u2019s father, is a healthy, able-bodied man who is. gainfully employed by the State Highway Commission, who has a well furnished home available for the child and who has a \u2018take-home\u2019 income of $205.00 every two weeks;\n\u201cThat this is the plaintiff\u2019s only child; that he is an active church member; that he has exhibited a father\u2019s love for the child and is not unfit to have the custody of the child although he has at times been abusive of and violent to the defendant and has contributed to her condition;\n\u201cThat the plaintiff has a good reputation in the community in which he lives and has made arrangements for assistance to look out for the child while he is on the job; .... \u201d\nThe court\u2019s findings of fact with respect to the father are supported by competent evidence in the record, and would support the conclusion that the father is a fit person to have the custody of his four-year-old child. In re McCraw Children, 3 N. C. App. 390, 165 S.E. 2d 1 (1969). The trial court\u2019s statement that the father is \u201cnot unfit\u201d is neither a proper finding of fact nor conclusion of law. It is the duty of the judge to make findings of fact and from those findings to make conclusions of law.\nG.S. 1A-1, Eule 52(a) (1), Eules of Civil Procedure, provides :\n\u201c(1) In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment.\u201d\n\u201cA court should not take a child from the custody of its parents and place it in the hands of a third person except upon convincing proof that the parent is an unfit person to have custody of the child or for some other extraordinary fact or circumstance.\u201d Lee, North Carolina Family Law, \u00a7 224, p. 25. See also Shackleford v. Casey, 268 N.C. 849, 150 S.E. 2d 513 (1966) ; James v. Pretlow, 242 N.C. 102, 86 S.E. 2d 759 (1955).\nFor the reasons stated, the order appealed from is reversed and the case remanded to the District Court of Wilson County for further proceedings not inconsistent with this opinion.\nReversed and remanded.\nJudges Campbell and Britt concur.",
        "type": "majority",
        "author": "HEDRICK, Judge."
      }
    ],
    "attorneys": [
      "Valentine, Valentine & Adams, by Robert K. Smith and I. T. Valentine, Jr., for plaintiff appellant.",
      "Whitted & Cherry, by Earl Whitted, Jr., for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "CHARLES WILTON THORNE v. VIOLET LEE THORNE\nNo. 707DC647\n(Filed 16 December 1970)\n1. Divorce and Alimony \u00a7 24; Infants \u00a7 9\u2014 award of custody to maternal grandmother \u2014 insufficiency of evidence and findings\nIn this child custody proceeding instituted by the child\u2019s father against the mother, order of the court awarding custody to the maternal grandmother is set aside where the court\u2019s determination that the best interest of the child would be served by an award of custody to the maternal grandmother is unsupported by the evidence and findings of fact, and the findings of fact supported by competent evidence would support the conclusion that the father is a fit person to have custody of the child.\n2. Divorce and Alimony \u00a7 24; Infants \u00a7 9\u2014 child custody \u2014 rights of parent \u2014 award to third person\nA court should not take a child from the custody of its parent and place it in the hands of a third person except upon convincing proof that the parent is an unfit person to have custody or for some other extraordinary fact or circumstance.\nAppeal by plaintiff from Harrell, District Judge, 23 April 1970 Session of Wilson County District Court.\nThis is a civil action by Charles Wilton Thorne (father) against his wife, Violet Lee Thorne (mother), to recover custody of their four-year-old adopted child, Tony Edward Thorne. After hearing the testimony of witnesses for both parties, and argument of counsel, Judge Harrell made findings of fact which included the following;\n\u201cThat because of the defendant\u2019s mental and emotional condition and because of her conduct, she is not now a fit and proper person to have the care and custody of her four year old, adopted son, Tony.\n\u201cOn the other hand, the plaintiff, Charles Wilton Thorne, the child\u2019s father, is a healthy, able-bodied man who is gainfully employed by the State Highway Commission, who has a well furnished home available for the child and who \u25a0 has a \u2018take-home\u2019 income of $205.00 every two weeks;\n\u201cThat this is the plaintiff\u2019s only child; that he is an active church member; that he has exhibited a father\u2019s love for the child and is not unfit to have the custody of the child although he has at times been abusive of and violent to the defendant and has contributed to her condition;\n\u201cThat the plaintiff has a good reputation in the community in which he lives and has made arrangements for assistance to look out for the child while he is on the job;\n\u201cThat the defendant\u2019s mother, is a fit, suitable, proper and competent person to have the care and custody of her four year old grandson, Tony, and the best interest of said child would be served and his general welfare enhanced by the assignment of his custody to the defendant\u2019s mother.\u201d\nFrom an order dated 8 July 1970 awarding \u201cpermanent custody\u201d of Tony Edward Thorne to Rossie Williamson, the maternal grandmother, the plaintiff appealed.\nValentine, Valentine & Adams, by Robert K. Smith and I. T. Valentine, Jr., for plaintiff appellant.\nWhitted & Cherry, by Earl Whitted, Jr., for defendant appellee."
  },
  "file_name": "0151-01",
  "first_page_order": 175,
  "last_page_order": 178
}