Browning v. Humphrey, 600

• Decision Date: 15 December 1954
• Docket Number: No. 600,600
• Citation: 241 N.C. 285,84 S.E.2d 917
• Parties: Dorothy BROWNING v. Virginla Britt HUMPHREY.
• Court: North Carolina Supreme Court

Page 917

84 S.E.2d 917

241 N.C. 285

Dorothy BROWNING v. Virginla Britt HUMPHREY.

No. 600

Supreme Court of North Carolina.

Dec. 15, 1954

J. H. Ferguson, Wilmington, for Petitioner, Appellant.

No Counsel for Appellee.

PARKER, Justice.

The sole exception is to the signing of the judgment, the ruling of the court, and to the 'finding of facts.' 'This is a broadside exception which merely challenges the sufficiency of the facts found to support the judgment entered.' Warshaw v. Warshaw, 236 N.C. 754, 73 S.E.2d 900, 901.

This exception fails to point out the particular finding of fact to which exception is taken. This is not sufficient to raise the question that there is no evidence to support the findings, or any one or more of them. Vestal v. Moseley Vending Machine Co., 219 N.C. 468, 14 S.E.2d 427.

R., p. 16, states: 'Thereafter the petitioner and the respondent gave oral testimony and offered witnesses * * *.' This evidence is not in the Record. Therefore, it is presumed that there was sufficient evidence to support the findings. Vestal v. Moseley Vending Machine Co., supra, and cases therein cited.

It is well settled law in this State, and it seems to be universally so held, that the mother of an illegitimate child is its natural guardian, and, as such, has the legal right to its custody, care and control, if a suitable person, even though others may offer more material advantages in life for the child. Wall v. Hardee, 240 N.C. 465, 82 S.E.2d 370; In re Cranford, 231 N.C. 91, 56 S.E.2d 35; In re Shelton, 203 N.C. 75, 164 S.E. 332; Ashby v. Page, 106 N.C. 328, 11 S.E. 283; Annotation 51 A.L.R. 1507; 7 Am.Jur., Bastards, Sec. 61.

We said in In re Foster's Adoption, 209 N.C. 489, 183 S.E. 744, 747: 'The right of the mother to the custody and care of such child, which the law recognizes, and which in proper cases the courts will enforce, may, however, be forfeited or relinquished by her. The right is not universal or absolute. Brickell v. Hines, 179 N.C. 254, 102 S.E. 309. It must yield to the best interest of the child, as determined by the mother, or by the courts. Atkinson v. Downing, 175 N.C. 244, 95 S.E. 487.'

In the instant case petitioner in the hospital where the child was born signed a consent for its adoption, though she withdrew it about a month later; and a few months after the child's birth, petitioner wrote respondent and the Norfolk Welfare Department that she was giving the child permanently to the respondent. It would seem that by such acts petitioner relinquished her right to its custody in the future. Respondent has furnished the sole support and maintenance for the child. Undoubtedly she loves the child as if he were her own flesh and blood. What was said in In re Foster's Adoption, supra, would seem to be controlling: 'The circumstances as disclosed by the record under which she surrendered her child and agreed to its adoption by a stranger excite sympathy for her, but cannot be invoked to restore to her rights which she voluntarily relinquished.'

In Wyness v. Crowley 292 Mass. 461, 198 N.E. 758,...