Hardee v. Mitchell
| Decision Date | 02 March 1949 |
| Docket Number | 92 |
| Parties | HARDEE v. MITCHELL. |
| Court | North Carolina Supreme Court |
The petitioner, Raymond F. Hardee, and the respondent, Violet Grace Mitchell, nee Violet Grace Myrick, intermarried in North Carolina December 25, 1941, and established a matrimonial domicile in Florida, where their son, Kenneth Ray Hardee, was born January 10, 1944. Their marriage was terminated by a decree of absolute divorce rendered in the Circuit Court of Seminole County, Florida, April 5, 1946 which awarded 'the permanent care, custody, and control' of Kenneth Ray Hardee to respondent and required petitioner to contribute $50.00 monthly to respondent for the support and education of Kenneth Ray Hardee until 'he arrives at the age of 21 years, or until the further order of this court. ' Both petitioner and respondent subsequently contracted second marriages with other spouses and located in North Carolina, the former settling in Nash County and the latter in Halifax County, where she now resides with her present husband, Joseph P. Mitchell, and the child Kenneth Ray Hardee.
On April 10, 1947, the petitioner commenced this special proceeding against the respondent in the Superior Court of Nash County to determine the custody of the minor, Kenneth Ray Hardee. In his petition, he prayed in the alternative either that he be granted the custody of the child, or that he be released from the requirement of the Florida decree that he contribute as much as $50.00 monthly to the child's support and education. The respondent answered alleging that the child's best interest demanded his continuance in her custody and asking that the petitioner be compelled to pay $50.00 per month to her for the child's maintenance. Judge Bone heard the evidence offered by petitioner and respondent in support of their respective claims without request from either of them for any specific findings. In actuality, the parties merely disagreed as to the inferences deducible from the salient facts, which were admitted in the pleadings on both sides and which disclosed the matters heretofore set forth, the good character of the respondent, and the financial ability of the petitioner to pay $50.00 monthly towards the support of his small son. Upon a 'consideration of the whole matter', Judge Bone found that 'the provisions set out below will promote the welfare of said child' and entered judgment providing 'that the custody of the child, Kenneth Ray Hardee, be and remain in the respondent, subject to the provisions hereinafter set forth; that the petitioner shall pay to the respondent for the support of said child the sum of $50.00 per month, said payments to be made on the 5th day of each and every month, until further order of the court; that during the entire month of July of each year the petitioner shall be permitted to take and keep with him the said child, Kenneth Ray Hardee, and further, during each calendar month in the year, except July, petitioner shall be permitted to have and keep with him the said child for one week-end to be selected by the petitioner, which said weekend shall commence at 9 o'clock A.M. on Saturday and end at 6 o'clock P.M. on Sunday.'
The petitioner noted a solitary exception 'to the signing of the judgment' and appealed therefrom to this Court.
S. L. Arrington, of Rocky Mount. for petitioner, appellant.
Banzet & Banzet, of Warrenton, for respondent, appellee.
The parties to this proceeding were divorced in Florida. Hence the petitioner has been well advised in point of procedure because the pertinent statute expressly prescribes that the custody of the child 'of parents who have been divorced outside of North Carolina may be determined in a special proceeding instituted by either of said parents in the superior court of the county wherein the petitioner, or the respondent or child' reside at the commencement of the proceeding. G.S. s 50-13; Phipps v. Vannoy, 229 N.C. 629, 50...
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