In re Albertson

• Decision Date: 24 January 1934
• Docket Number: 496.
• Citation: 172 S.E. 411,205 N.C. 742
• Parties: In re ALBERTSON.
• Court: North Carolina Supreme Court

172 S.E. 411

205 N.C. 742

In re ALBERTSON.

No. 496.

Supreme Court of North Carolina

January 24, 1934

Appeal from Superior Court, Guilford County; Sink, Judge.

Petition by Mrs. Grace Albertson against W. H. Albertson for habeas corpus to determine the custody of James Leslie Albertson, an infant. From an adverse judgment, respondent appeals.

Error and cause remanded.

Separation agreement cannot deprive court of power to adjudicate custody of child.

Habeas corpus to determine the custody of James Leslie Albertson, an infant, eight years of age. The mother of the infant is Mrs Grace Albertson, the petitioner, and the father is W. H Albertson, the respondent. These parties were married to each other on June 19, 1923, and their son was born on November 6 1926. In September, 1929, they separated, and on February 26 1930, they executed an agreement of separation which contains this paragraph: "The said wife shall have the sole and exclusive custody, care and control of the child of the parties hereto, to-wit, Leslie, age five years, except that the husband shall have the privilege of seeing the said child at any time he desires."

There is evidence that thereafter the respondent instituted an action against the petitioner for absolute divorce in the municipal court of the city of High Point, and that at September term, 1932, he was granted a decree dissolving the bonds of matrimony. The court made no order as to the custody of the child; but on June 9, 1933, the respondent took him from the petitioner and placed him in the home of a family in Randolph county. On the next day the petitioner obtained a writ of habeas corpus, and at the hearing Judge Sink awarded the custody of the child to the mother, finding that she is a fit and proper person to whom to commit his custody and control. The respondent appealed.

T. W. Albertson and Walser & Casey, all of High Point, for appellant.

Thomas Turner, Jr., of High Point, for appellee.

ADAMS Justice.

No question is made as to the right of appeal; the statute providing that in all cases of habeas corpus, where a contest arises in respect to the custody of minor children, either party may appeal to the Supreme Court from the final judgment. C. S. § 2242; Stokes v. Cogdell, 153 N.C. 181, 69 S.E. 65.

In his answer to the petition for the writ, the respondent alleges that, after the deed of separation was executed, he was granted a decree by which the marriage relation between the petitioner and himself was dissolved; and at the hearing he introduced without objection a written instrument purporting to be a judgment of the municipal court of the city of High Point in the case of W. H. Albertson v. G. P. Albertson, dissolving the bonds of matrimony between these parties. In the present case the judgment awarded the custody of the child to the mother, but Judge Sink made no reference to the decree of divorce, and recited the fact that, by agreement contained in the deed of separation, the custody of the child had been committed to the petitioner.

If the parents of James Leslie Albertson have been granted an absolute divorce, the controversy in the case before us is similar to that which arose in the case of Natalie Blake, 184 N.C. 278, 114 S.E. 294, 295. There a petition for habeas corpus was filed by the mother of the child against Hubert M Blake, the child's father. The petitioner had previously been divorced from the respondent in the superior court of Mecklenburg county, but the custody of the child had not been determined. The court hearing the writ of habeas corpus awarded the custody of the child to the mother,...