In Re Blake., (No. 249.)

• Decision Date: 01 November 1922
• Docket Number: (No. 249.)
• Parties: In re BLAKE.
• Court: North Carolina Supreme Court

114 S.E. 294

In re BLAKE.

(No. 249.)

Supreme Court of North Carolina.

Nov. 1, 1922.

Appeal from Superior Court, Wake County; Bond, Judge.

In the matter of Natalie Blake. Petition for writ of habeas corpus by Mrs. Christine Muse against Hubert M. Blake. Judgment awarding custody of infant child to petitioner, and respondent appeals. Error.

D. E. Henderson, of Charlotte, and Evans & Eason and Murray Allen, all of Raleigh, for appellant.

WALKER, J. This is a petition for a writ of habeas corpus to determine the custody of a child eight years of age, heard by his honor, W. M. Bond, at December term. 1921, of Wake superior court. The petition was filed by Mrs. Christine Muse, mother of the child, Natalie Blake, against Hubert M. Blake, the child's father. The court rendered judgment awarding the custody of the child to the mother, and directing the payment of $15 per month by the father to the mother to be applied to the child's support. The respondent excepted to this order, and appealed. The order is set out in full in the record.

The court finds, among other facts, that on April 28, 1919, the petitioner was granted an absolute divorce from the respondent. Hubert M. Blake, in the superior court of Mecklenburg county, N. C., and that no order has ever been made in said action for the custody of the child, Natalie Blake.

The exceptions to the order entered in this cause are based upon the following grounds: (1) Want of jurisdiction to determine the custody of the child; (2) want of power to order respondent to contribute to the support of the child.

By section 1664, Consol. Statutes, it is provided that—

"After the filing of a complaint in any action for divorce, whether from the bonds of matrimony or from bed and board, both before and after final judgment therein, it is lawful for the judge of the court in which such application is or was pending to make such orders respecting the care, custody, tuition and maintenance of the minor children of the marriage as may be proper, and from time to time to modify or vacate such orders, and may commit their custody and tuition to the father or mother, as may be thought best; or the court may commit the custody and tuition of such infant children, in the first place, to one parent for a limited time, and after the expiration of that time, then to the other parent, and so alternately: Provided, that no order respecting the children shall be made on the application of either party without five days' notice to the other party, unless it shall appear that the party having the possession or control of such children has removed or is about to remove the children, or himself, beyond the jurisdiction of the court."

See Howell v. Howell, 162 N. C. 287, 78 S. E. 222, 45 L. R. A. (N. S.) 867, Ann. Cas. 1914A, 893. Except as between parents, the right of custody of a child cannot be determined by a writ of habeas corpus. Consol. Statutes, § 2241; In re Parker, 144 N. C. 170, 56 S. E. 878. And it is essential that the parents must be living in a state of separation "without being divorced" before the court has power in a habeas corpus proceeding to determine the custody of a child. Such power is based upon section 2241, Consol. Statutes, which provides:

"When a contest shall arise on a writ of habeas corpus between any husband and wife, who are living in a state of separation, without being divorced, in respect to the custody of their children, the court or judge, on the return of such writ, may award the charge or custody of the child or children so brought before it either to the husband or to the wife, for such time, under such regulations and restrictions, and with such provisions and directions as will, in the opinion of such court or judge, best promote the interest and welfare of the children. At any time after the making of such orders the court or judge may, on good cause shown, annul, vary or modify the same." (Italics ours.)

When this statute is considered in connection with section 1664, Consol. Statutes, quoted supra, it becomes apparent the Legislature intended that the custody of children, where there had been a divorce of the parents, shall be determined by the court In which the divorce is granted, and, where there is no divorce, by proceedings in habeas corpus. Jurisdiction of the court in which a divorce is granted to award the custody of a child is exclusive and continuing In re Krauthoff, 191 Mo. App. 149, 177 S. W. 1118. The court held in the case of Re Mor gan, 117 Mo. 249, 21 S. W. 1122, 22 S. W. 913, construing a divorve statute similar to ours, that, pending a suit for divorce in a court having jurisdiction of the parties and subject-matter, another court will not interfere by writ of habeas corpus with either party's possession of their children, "notwithstanding Rev. St. § 5415, which provides that, in all proceedings on habeas corpus between husband and wife for the custody of their children, the court may award the custody to the complainant or other guardian, as shall be deemed best."

Under our statute (section 6664, Consol. Statutes) a divorce suit is pending for the purpose of an order as to the custody of children after as well as before final judgment. This statute expressly vests in the divorce court the power to award the custody of children, and from time to time to modify or vacate its orders, and the necessary implication is that this jurisdiction is exclusive. It is said in Corpus Juris, page 341, that—

"This jurisdiction continues during the state of minority, and is subject to be invoked at any time within that period, and will not be interfered with by process issuing out of other courts."

In Page v. Page, 166 N. C. 90, 81 S. E. 1060, an action for divorce from bed and board was pending between the parents of an infant child, and a dispute arose as to the custody of the child. The mother filed a petition for a writ of habeas corpus. In holding that the remedy was by motion in the divorce cause, the Chief Justice said:

"Indeed, if the plaintiff had been entitled to an order, for any...