Harris v. Harris

• Citation: 20 S.E. 187,115 N.C. 587
• Court: United States State Supreme Court of North Carolina
• Decision Date: 16 October 1894
• Parties: HARRIS. v. HARRIS.

20 S.E. 187

115 N.C. 587

HARRIS.

v.HARRIS.

Supreme Court of North Carolina.

Oct. 16, 1894.

Validity of Divorce — Personal Service—Custody of Child—Application by Nonresident.

1. A divorce obtained by the wife without personal service on the husband, a resident of another state, has no extraterritorial validity.

2. The court will not deliver a child into the custody of a nonresident mother if it does not appear that the child desires to go to her, or that the husband is not a proper person to have it, or that the child will be benefited by the change.

Appeal from superior court, Buncombe county; Shuford, Judge.

Petition for habeas corpus by Florence R. Harris against C. J. Harris for the custody of their minor son. Judgment for plaintiff, and defendant appeals. Reversed.

W. W. Jones and J. J. Hooker, for appellant.

J. H. Merrimon, for appellee.

CLARK, J. The decree of divorce obtained by the wife, resident in Colorado, against the husband, domiciled in this state, without personal service upon him, is a nullity in this state, Irby v. Wilson, 21 N. C. 568. At the most, it could only be valid in the state where it was granted. It can have no extraterritorial validity. Davidson v. Sharpe, 28 N. C. 14; Schonwald v. Schonwald, 55 N. C. 367. Arrington v. Arrington, 102 N. C. 491, 9 S. E. 200, reaffirms Irby v. Wilson, supra, though the divorce in the Arrington Case was upheld, because of the appearance of the defendant to the action. State v. Schlachter, 61 N. C. 520, merely holds that, where a person divorced by a decree valid in the state where granted marries another by a marriage recognized as valid in such state, the validity of the latter marriage cannot be questioned by an indictment for fornication and adultery in this state on their removal here. The decree obtained in Colorado, upon constructive service by publication, and by sending summons through the mail to the defendant in this state, has no validity here (Long v. Insurance Co., 114 N. C. 465, 19 S. E. 347; Wilson v. Seligman, 144 U. S. 41, 12 Sup. Ct 541), either as to the relation of the parties or as to the custody of the child, which, at the time of the proceeding, was domiciled with its father, in North Carolina. This is therefore to be treated simply as a contest upon habeas corpus between husband and wife, living in separation, without being divorced, as to the custody of the child, under Code, § 1661. This rests in the sound discretion of the judge, subject, however, to review on appeal upon the facts found, as provided by Code, § 1662. According to the findings of fact, the father is a suitable person to have the custody of the boy, 9 1/2 years old. It does not appear that the mother (who already has the only other child) is in any wise more suitable than the father. The...