Clegg v. Clegg

• Decision Date: 12 September 1923
• Docket Number: 281.
• Citation: 118 S.E. 824,186 N.C. 28
• Parties: CLEGG v. CLEGG.
• Court: North Carolina Supreme Court

118 S.E. 824

186 N.C. 28

CLEGG v. CLEGG.

No. 281.

Supreme Court of North Carolina

September 12, 1923

Appeal from Superior Court, Robeson County; Devin, Judge.

Habeas corpus proceeding by Annie McIntosh Clegg against I. N Clegg. From judgment, both parties appeal. Modified and affirmed.

Stacy J., dissenting.

Welfare of child is paramount consideration.

McLean Varser, McLean & Stacy, of Lumberton, for petitioner.

H. F. Seawell, of Carthage, and McIntyre, Lawrence & Proctor, of Lumberton, for respondent.

CLARKSON J.

The essential facts of the case are as follows:

The prayer of the petitioner, Annie McIntosh Clegg, the wife of the respondent, was that Ann Monroe, Margaret, and Archie Clegg, her children, be delivered to her "for her care and custody in accordance with the agreement between the two." She alleges that, "on or about the 13th day of September, 1922, in an effort to reconcile the difference between petitioner and respondent, and to adjust the relationship that would exist between them in the future, the petitioner and respondent agreed at her home near Richmond, Va., that the petitioner should have the possession, care, and custody of her two girls, Ann Monroe and Margaret, and her infant son Archie, and, in order to consummate this agreement, petitioner agreed to return with the respondent to North Carolina and stay with him for a week or 10 days, at which time it was agreed that she would return to the home of her mother at Richmond, Va., and take with her the infant son, of the petitioner and respondent." She alleges that she carried out her part of the agreement, but that the respondent did not, and alleges in detail his failure and conduct towards her in this respect, and that, in violation of the agreement, he even went to her home near Richmond, and, unknown to her, took the two girls, and the respondent now has all four of the children born of the marriage--Newton, aged 12, Ann Monroe, aged 10, Margaret, aged 7, and Archie, aged 5,--living with him at his home in the town of Rowland. From the findings of the court below it is unnecessary in the decision of this case to recite in detail the allegations of wrongs done her by respondent.

The respondent, I. N. Clegg, denies this agreement, and denies "that petitioner returned to North Carolina under any agreement or arrangement with the respondent whereby the petitioner should be permitted to take the children, or any of them, away from the care and custody of the respondent, but admits that the petitioner did return to North Carolina upon what he presumed to be a reconciliation, and with the sincere hope upon the part of respondent that their home life might be improved and made into what it should be. He denies that he was in any way responsible for the causes which petitioner claims forced her from his home at Rowland to the home of her mother at Richmond. The respondent claimed that the two girls were taken to the home of their grandmother near Richmond ostensibly upon a visit, and that he went and got them. He admitted that he took them unknown to the petitioner, but in the daytime; that the children were in the country, and "he spoke to said children, who rushed to him, put their arms about his neck, kissed him, and gladly accompanied him back to their home in North Carolina;" that he placed them in the graded school at Rowland, where they had been previously going to school. The respondent admits the children are with him and that "they are happy, contented, and are receiving the best of care possible under the unfortunate circumstances existing, which have been caused by no fault of respondent; and it is admitted that the respondent has refused to abandon his duty and surrender the care and custody of said children to the petitioner, or to permit her to take them away from the home of the respondent to be a care and burden to their old grandmother, who is very aged, and unable to personally care for them." Respondent "prays that the writ of habeas corpus may be dismissed, and that said children may be left in the custody of the respondent, and that their care, custody and tuition may be left with the respondent while the petitioner chooses to remain away and refuses to reside with the respondent and in the home provided by him for said children."

The court found the following facts:

"The court finds as a fact from the affidavits and oral testimony offered that the petitioner and respondent are mother and father, respectively, of the children named in the petition, and that the father and mother, without divorce, are living in a state of separation, the mother now residing with petitioner's mother in Chesterfield county, near the city of Richmond, Va., and the respondent now residing in Rowland, Robeson county, N. C., and that the children are now with their father in said county.

The court finds that each of the parties hereto is a person of good moral character, and that there is nothing in evidence reflecting on either of said parties, except incompatibility of temper and disposition, and the differences and friction caused thereby; that the separation is due to faults on both sides, but that there is nothing, in the opinion of the court, that Christian forgiveness and forbearance could not overcome. But the court realizes that it is not in the power or jurisdiction of the court to do more than to find that there is nothing in the evidence adduced in the case which would in any way militate against or prevent a complete reconciliation and cohabitation upon the part of the petitioner and respondent.

The court finds that the failure of the respondent to protect his wife from being frightened and terrorized by the visitation in their home in Rowland, and the circumstances surrounding it, was such as would prevent the petitioner from living with her husband at that place, and that her failure to return and live with him there should not be held against her as an abandonment.

The court finds that the respondent, on or about the 1st day of November, 1922, went to the city of Richmond, where the petitioner was residing with two of the children, and surreptitiously obtained possession of said children, and returned with them to his home in Rowland. The court had a private talk with the children, in addition to the evidence offered, in the effort to ascertain what would be for the best interest of said children. The court finds that the respondent is a capable and suitable person to have the custody of said children, and that said children are happy and are well provided for in their present home. The respondent is a minister of the Gospel, in the active ministry, serving four churches, each of which has adopted resolutions testifying to his character as a minister and a man.

The petitioner is residing now with her mother, in Chesterfield county, near Richmond, Va. Her mother is a woman 71 years of age, worth about $40,000; has a large, commodious home, and is a woman of high Christian character. The brothers of petitioner are men of standing and character. The home where petitioner now resides is in every way a suitable place in which the mother may be associated with and know and be known to her children. The court is of opinion that the children, in the interest of their welfare, should be permitted to be associated with and to know their mother. The court finds that the petitioner is a woman of good standing, and in every way suitable for the association with her children.

The court finds that the petitioner, on August 3, 1922, left the home of the respondent, taking with her the two daughters, to her mother's in Virginia; that while in respondent's home the differences and unpleasantness between petitioner and respondent were not sufficient, in law, to entitle her to a divorce from bed and board, nor to constitute an abandonment upon his part; that the respondent has always been a dutiful and loving father to said children, and has means sufficient to reasonably provide for their nurture and upbringing; that the mother is a dutiful and loving mother, and in the opinion of the court should not be prevented from an opportunity to associate with and to be known by her own children, subject to the superior custody of the children to the father."

The order of the court is as follows:

"This cause coming on to be heard and being heard before W. A. Devin, judge presiding over the courts of the Ninth judicial district, at chambers in Lumberton, N. C., and this the 15th day of June, 1923, and after consideration of the pleadings, affidavits, oral testimony, and argument of counsel, the court finds that the custody of said children should be awarded the respondent, but that the welfare of the children, Annie Monroe, Margaret, and Archie Clegg, would be subserved by their spending a part of their time with the petitioner and part thereof with the respondent, and to that end it is ordered, adjudged, and decreed that the custody of said children is awarded to the respondent, I. N. Clegg, upon the condition that the said children be allowed to reside with and associate with their mother at the home of the petitioner's mother in Chesterfield county, near the city of Richmond, Va., until the 1st day of September, 1923, at which time the respondent shall have the care and custody of said children until the 1st day of June, 1924, and on the 1st day of June, 1924, and each year thereafter, until otherwise ordered, the said children shall be permitted to be and reside with their mother until the 1st day of September, 1924, and each year thereafter until otherwise ordered.

The court finds that the respondent is a suitable person to have the care and custody of said children, but that their welfare would be promoted by permitting them to...