In Re Biggers Et Al.

• Decision Date: 07 April 1948
• Docket Number: No. 379.,379.
• Citation: 47 S.E.2d 32,228 N.C. 743
• Parties: In re BIGGERS et al.
• Court: North Carolina Supreme Court

47 S.E.2d 32

228 N.C. 743

In re BIGGERS et al.

No. 379.

Supreme Court of North Carolina.

April 7, 1948.

Appeal from Superior Court, Cabarrus County; Geo. B. Patton, Special Judge.

Proceeding in the matter of Boyd Big. gers and Lawrence Biggers, minors, wherein Annie Bost Biggers Bennick moved to review and modify an order of court as to custody of the minors and to have J. L. Biggers cited for contempt for failure to comply with custody order made in habeas corpus proceeding. From judgment denying motion, petitioner appeals.

Cause remanded.

This was a motion upon notice to review and modify an order of court as to the custody of the children named in the caption, and to have respondent J. L. Biggers attached for contempt for failure to comply with said order as originally entered.

It appears that in 1944 on petition of Annie Bost Biggers, then separated from her husband J. L. Biggers, an order apportioning the custody of the two children of the marriage between the parents was made by Judge Bobbitt. The children were before the court in response to a writ of habeas corpus. G.S. § 17-39. Thereafter J. L. Biggers removed to Florida taking the children with him, and there instituted suit for divorce from the petitioner. In the Florida court the petitioner Annie Bost Biggers appeared, employed counsel and filed answer, and on December 11, 1945, judgment was rendered dissolving the bonds of matrimony, and awarding the custody of the children to the father J. L. Biggers. In February 1946 Annie Bost Biggers married James Bennick, and thereafter moved in the Superior Court of Cabarrus County that J. L. Biggers be attached for contempt for failure to comply with the order of Judge Bobbitt. The petition was dismissed, but on appeal the matter was remanded. In re Biggers, 226 N.C. 647, 39 S.E.2d 805. At April Term, 1947, petition was again dismissed by Judge Alley, no notice thereof having been served on the respondent J. L. Biggers. At November Term, 1947, on petition filed October 21, 1947, and notice duly served, petitioner again moved that J. L. Biggers be attached for contempt, and that the original order as to the custody of the children be reviewed and modified. No answer thereto appears to have been filed.

In the petition it was alleged that after the order of Judge Bobbitt was entered J. L. Biggers took the children to Florida and kept them there for the purpose of defeating the order of the court, and has continued to keep them; that when this matter was pending in this Court (Fall Term 1946) he again left the state, and only recently returned to Cabarrus County, bringing the children with him; "that after bringing the said minor children to the County of Cabarrus, the said J. L. Biggers then again left, and left the said minor children with his father H. N. Biggers, who is a resident of Cabarrus County, North Carolina."

After finding certain facts the motion was denied, and petitioner appealed.

E. Johnston Irvin, of Concord, for petitioner appellant,

Hartsell & Hartsell, of Concord, for respondent appellee.

DEVIN, Justice.

This is another of those unfortunate cases of the children of divorced parents.

The petitioner, Mrs. Annie Bost Biggers, now Mrs. Bennick, having entered an appearance and filed answer in the suit instituted by her former husband, J. L. Biggers, in the State of Florida, she is bound by the judgment duly entered in that court in so far as it dissolved the marriage ties. Under the full faith and credit clause of the Constitution of the United States, Art. IV, sec. 1, the Florida divorce decree is valid here. State v. Williams, 224 N.C. 183, 29 S.E.2d 744; McRary v. McRary, N.C, ...