Coble v. Coble

• Citation: 47 S.E.2d 798,229 N.C. 81
• Decision Date: 19 May 1948
• Docket Number: 675
• Parties: COBLE v. COBLE.
• Court: United States State Supreme Court of North Carolina

47 S.E.2d 798

229 N.C. 81

COBLE v. COBLE.

No. 675

Supreme Court of North Carolina

May 19, 1948

Civil action for divorce on the grounds of adultery and for the custody of the children born of the marriage heard upon special appearance and motion to vacate an order awarding the custody of the children to plaintiff.

Plaintiff and defendant are man and wife, living in a state of separation. On December 9, 1947, plaintiff instituted a proceeding in the juvenile court of Greensboro for the purpose of obtaining custody of the two children born of the marriage. As notice of the hearing thereon could not be served on defendant, the proceeding was dismissed on motion of plaintiff.

The plaintiff then, on January 26, 1948, instituted this action. The summons was returned January 27, unserved for the reason defendant could not be found in Guilford County. Thereupon the court, upon motion of plaintiff, entered an order committing the custody of said children to plaintiff. This order was likewise returned unserved.

Complaint was filed January 26, in which plaintiff alleges, in respect to the proceedings in the juvenile court, 'that the defendant removed said minor children and herself from the State of North Carolina and beyond the jurdisdiction of this Court for the purpose of escaping the jurisdiction of the courts of North Carolina and to avoid the service of lawful process upon her; that, process having failed, said proceedings in the Juvenile Court were, at the request of the petitioner therein (the plaintiff herein) dismissed.'

Order for the service of summons by publication was duly entered January 30, and service thereof was duly made by publication as required by law.

On February 14, defendant, through, counsel entered a special appearance and moved the court to vacate and set aside the order awarding custody of the children to plaintiff and directing defendant to surrender custody thereof immediately to the plaintiff.

On March 15, between the date the motion was made and the hearing thereon, plaintiff, in some undisclosed manner acquired custody and possession of his children near Greenville, S. C.

On March 18, the court below, after hearing, denied the motion to vacate and defendant excepted and appealed.

Hines & Boren and Brooks, McLendon, Brim & Holderness, all of Greensboro, for plaintiff-appellee.

Shuping & Shuping, H. L. Koontz, and Bryce R. Holt, all of Greensboro, for defendant-appellant.

BARNHILL Justice.

The primary and determinative question presented on this appeal is appropriately stated in appellant's brief as follows: 'Is an order of a Judge of the Superior Court awarding custody of minor children to a plaintiff under G.S. s 50-13, made without jurisdiction and in denial of due process of law, when at the time such order was made there had been neither service of summons upon nor notice to the defendant, and when both the defendant and the minor children were without the State?'

In the order awarding custody of the children to plaintiff the court finds 'that said defendant is about to remove herself and said minor children from the State of North Carolina and beyond the jurisdiction of the courts of North Carolina. ' This finding is unsupported by evidence and is in direct conflict with the postive, affirmative allegations in the complaint.

The plaintiff further contends that the domicile of the husband is the domicile of his wife and children, and so, legally, they were within the State at the time. Here, too, he is met by his own allegations. He asserts that after she had been away from his home for some time, flitting from place to place, in and out of the State, in questionable company, she returned to his home; that he declined to live with her; and that she lived in separate quarters in his home, over his protest, until August 8, 1947, when she left. Even before then he had made a trip to Florida just to notify her 'that he would no longer live with her as her husband. ' He is not now in position to insist upon any fictional unity of domicile. If any such unity ever existed, for the purpose here invoked, he severed it by his own acts. Irby v. Wilson, 21 N.C. 568.

Hence, we must consider the validity of the order in the light of the fact it was entered without the service of any notice or other process and at a time when both defendant and the children were outside the State of North Carolina.

It takes more than domicile to confer jurisdiction over the person of a party. He must be served with process within the jurisdictional limits of the court and thus subjected to its orders and decrees, entered after notice and an opportunity to be heard. If the custody of children is the issue, they must be within the bounds of the State. Pridgen v. Pridgen, 203 N.C. 533, 166 S.E. 591; Burrowes v. Burrowes, 210 N.C. 788, 188 S.E. 648; In re Biggers, 228 N.C. 743, 47 S.E.2d 32; Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565.

The action, as it relates to the custody of the children, is in the nature of an in rem proceeding. The children are the res over which the court must have jurisdiction before it may enter a valid and enforceable order. Indeed, a divorce action is so considered, the status being the res. State v. Williams, 224 N.C. 183, 29 S.E.2d 744. It is for this reason service of summons by publication is permitted.

At the time the order was issued, the res was not within the jurisdiction of the court. The defendant--the custodian--was not served with notice and was not accorded an opportunity to be heard This runs counter to the genius of a free people and will not be permitted. The order is void. In re Samuel Parker, 144 N.C. 170, 56 S.E. 878; Warlick v. Reynolds, 151 N.C. 606, 66 S.E. 657; Armstrong v. Kimsell, 164 N.C. 125, 80 S.E. 235; Hart v. Commissioners, 192 N.C. 161, 134 S.E. 403; Monroe v. Niven, 221 N.C. 362, 20 S.E.2d 311; Ex parte Thompson, 228 N.C. 74, 44 S.E.2d 475; In re Biggers, supra.

'It lies at the foundation of justice, that every person who is to be affected by an adjudication should have the opportunity of being heard in defense, both in repelling the allegations of fact, and upon the matter of law * * *. ' Pridgen v. Pridgen, supra [203 N.C. 533, 166 S.E. 594].

But the plaintiff insists that the order, as a temporary remedial writ or decree, is authorized by G.S. s 50-13 and should be so recognized.

Of course, where a parent is about to abscond and take her children beyond the jurisdiction of the court for the purpose of avoiding the...