{
  "id": 8556723,
  "name": "IN THE MATTER OF: The Custody of Melvin Lee Cox, Jr., Susan Dianne Cox and James Earl Cox",
  "name_abbreviation": "In re the Custody of Cox",
  "decision_date": "1973-03-28",
  "docket_number": "No. 7319DC176",
  "first_page": "687",
  "last_page": "691",
  "citations": [
    {
      "type": "official",
      "cite": "17 N.C. App. 687"
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  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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  "jurisdiction": {
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    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "162 S.E. 2d 524",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1968,
      "opinion_index": 0
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    {
      "cite": "2 N.C. App. 211",
      "category": "reporters:state",
      "reporter": "N.C. App.",
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        8552199
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      "year": 1968,
      "opinion_index": 0,
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  "last_updated": "2023-07-14T17:26:57.402584+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Camprell and Hedrick concur."
    ],
    "parties": [
      "IN THE MATTER OF: The Custody of Melvin Lee Cox, Jr., Susan Dianne Cox and James Earl Cox"
    ],
    "opinions": [
      {
        "text": "MORRIS, Judge.\nG.S. 50-13.2(a) provides as follows:\n\u201cAn order for custody of a minor child entered pursuant to this section shall award the custody of such child to such person, agency, organization or institution as will, in the opinion of the judge, best promote the interest and welfare of the child.\u201d\nThis provision became effective in 1967 and codified the rule enunciated many times by the North Carolina Supreme Court that in custody cases the welfare of the child is the \u201cpolar star\u201d by which the court\u2019s decision must be guided. In Re Custody of Pitts, 2 N.C. App. 211, 162 S.E. 2d 524 (1968).\nAlso, \u201c [w] hile this guiding principle is clear, decision in particular cases is often difficult and necessarily a wide discretion is vested in the trial judge. He has the opportunity to see the parties in person and to hear the witnesses, and his decision ought not to be upset on appeal absent a clear showing of abuse of discretion.\u201d Pitts, supra, p. 212.\nWith these principles in mind we examine respondent\u2019s contention on appeal that the trial judge erred in refusing to return custody of her two minor children in light of the evidence presented at the hearing of 28 September 1972.\nIn the findings of fact in the order appealed from, the trial judge referred to the order of 31 August 1972 and stated that the court had found as a fact that it was to the best interest and welfare of the children that custody be awarded to the Department of Social Services and that the basis of that finding was grounded upon competent evidence at the hearings. It is clear from the record that the judge hearing the matter on 28 September 1972 was also the judge who heard the matter on 31 August 1972. It is also clear, therefore, that after considering the evidence presented at the hearing of 28 September 1972, the trial judge concluded that no competent evidence had been presented sufficient to warrant the entry of an order changing custody of the children. The court had the opportunity to see the parties in person and to observe their demeanor. His decision ought not to be upset absent a clear showing of abuse of discretion. None has been shown.\nRespondent next contends that the trial court erred in refusing to award her counsel fees for the prosecution of this custody action and in refusing to tax the court costs against petitioner father. G.S. 50-13.6 provides the following:\n\u201cCounsel fees in actions for custody and support of minor children. \u2014 In an action or proceeding for the custody or support, or both, of a minor child the court may in its discretion allow reasonable attorney\u2019s fees to a dependent spouse, as defined in G.S. 50-16.1, who has insufficient means to defray the expenses of the suit.\u201d\n\u201cDependent spouse\u201d as defined in G.S. 50-16.1(3) \u201cmeans a spouse, whether husband or wife, who is actually substantially dependent upon the other spouse for his or her maintenance and support or is substantially in need of maintenance and support from the other spouse.\u201d\nIn her motion of 19 September 1972, respondent alleged that she was a dependent spouse. However, she introduced no evidence as to her status or inability to defray the expenses of the suit. We find no merit in her contention.\nAs to the taxing of court costs, G.S. 6-1 provides that the \u201cparty for whom judgment is given\u201d shall be allowed to recover his costs. Respondent certainly does not qualify as the \u201cparty for whom judgment is given.\u201d This assignment of error is overruled.\nRespondent also assigns as error the trial court\u2019s refusal to permit respondent\u2019s counsel to inspect the files of the Department of Social Services relating to the minors involved in this case. The record indicates that at a \u201chearing started on July 17, 1972,\u201d respondent requested the court to order the Department of Social Services to turn over to her \u201cthe entire record relating to the investigation of the Department of Social Services of these children.\u201d The request was denied. Entered in the record at that point is the following: \u201cThis is Respondent\u2019s exception No. 2.\u201d No order appears in the record as a result of a hearing started on 17 July 1972. If this hearing was continued and the order entered 31 August 1972 was the order entered, no exception to that order appears, nor did respondent appeal therefrom.\n\u201c [P] roceedings on appeal are ordinarily strictly limited to review of matters directly affecting the judgment, order, or decree appealed from, and other decisions, whether rendered before or after that directly appealed from, are not before the court.\u201d 5 Am. Jur. 2d, Appeal and Error, \u00a7 725, pp. 168-169.\nThe question respondent attempts to raise is not before the Court. This assignment of error is also overruled.\nThe order of the trial court is\nAffirmed.\nJudges Camprell and Hedrick concur.",
        "type": "majority",
        "author": "MORRIS, Judge."
      }
    ],
    "attorneys": [
      "Bell, Ogburn and Redding, by Deane F. Bell, for petitioner appellee.",
      "Ottway Burton for respondent appellant."
    ],
    "corrections": "",
    "head_matter": "IN THE MATTER OF: The Custody of Melvin Lee Cox, Jr., Susan Dianne Cox and James Earl Cox\nNo. 7319DC176\n(Filed 28 March 1973)\n1. Infants \u00a7 9 \u2014 child custody proceeding \u2014 review of court\u2019s decision\nDecision of the trial court awarding custody of minor children to the Department of Social Services rather than to the mother is not disturbed on appeal, absent a clear showing of abuse of discretion.\n2. Costs \u00a7 1; Infants \u00a7 9 \u2014 child custody proceeding \u2014 costs and counsel fees\nRespondent in a child custody proceeding was not entitled to an award of counsel fees or to have court costs taxed against petitioner father where respondent introduced no evidence with respect to her dependent status or inability to defray the expenses of the suit and where she was not the party for whom judgment had been given. G.S. 60-13.6; G.S. 6-1.\n3. Appeal and Error \u00a7 21 \u2014 denial of request for information \u2014 no re-review on appeal\nChallenge by respondent in a child custody proceeding to the trial court\u2019s denial of her request that the Department of Social Services turn over to her the entire record relating to its investigation of her children was not before the court on appeal.\nAppeal by respondent from Sapp, Judge, 25 September 1972 Session of Randolph County District Court.\nRespondent appealed from an order of the trial court entered 28 September 1972 in which the court refused to revoke and rescind an order of 31 August 1972 awarding the custody and tuition of her two minor children, James Earl Cox and Susan Dianne Cox, to the Department of Social Services and in which the trial court refused to restore custody of the children to respondent. A third child of respondent, Melvin Lee Cox, is not involved in this appeal. The order appealed from is the last in a series arising out of custody proceedings begun in 1961 by petitioner father, now divorced from respondent mother.\nThis cause was heard upon motion of respondent mother filed 19 September 1972, alleging that fraud had been perpetrated upon the trial court in that the two minor children, at the coercion of representatives of the Department of Social Services and the petitioner father\u2019s family, had perjured themselves at hearings held on 17 July 1972 and 31 August 1972. At the hearing upon respondent\u2019s motion, the two minors involved testified that they had lied to the court at the prior hearings in testifying that respondent mother had cruelly beaten them and that she had failed to provide them with adequate medical attention. Also, respondent introduced into evidence five letters allegedly written by James Earl Cox, four of which were addressed to respondent and a fifth to a \u201cLawyer or Judge,\u201d all allegedly written from the Junior Order Children\u2019s Home in which James Earl Cox and Susan Dianne Cox had been placed pursuant to the trial court\u2019s order of 31 August 1972. In the letters, James Earl Cox expressed his love for respondent, his desire to live with her, his regret that he lied to the court as to respondent\u2019s treatment of him, and that an employee of the Department of Social Services had forced him to lie to the court.\nNo evidence was offered on behalf of the Department of Social Services or the petitioner father. At the close of the hearing the trial court made findings of fact and concluded that there was no competent evidence to support a change in the 31 August 1972 order and entered the order from which respondent appealed.\nBell, Ogburn and Redding, by Deane F. Bell, for petitioner appellee.\nOttway Burton for respondent appellant."
  },
  "file_name": "0687-01",
  "first_page_order": 711,
  "last_page_order": 715
}