In re De Ford

• Decision Date: 20 March 1946
• Docket Number: 239
• Parties: In re DE FORD.
• Court: North Carolina Supreme Court

37 S.E.2d 516

226 N.C. 189

In re DE FORD.

No. 239

Supreme Court of North Carolina

March 20, 1946

Proceeding instituted in the juvenile court of Johnston County to determine the custody of James Lyman DeFord, an infant seven years of age.

Petitioner Mrs. Elizabeth Brown Mann, and respondent Lyman DeFord, a native of North Carolina, married January 25, 1935 in Louisiana, of which State petitioner was then a resident. DeFord was then and is now a sergeant in the United States Army. On July 1, 1938, James Lyman DeFord, their only child was born.

In September 1943 Sgt. DeFord, due to information received, went to Shreveport, La., where petitioner was then living. He found that his wife was then in jail and his child was in the custody of the juvenile court. The juvenile court awarded him temporary custody of his child, and he immediately placed it with his sister in Four Oaks, N. C., for proper care and attention, and made an allotment for its support. He likewise instituted, in Louisiana, an action for divorce in which he prayed custody of the child.

A final decree of divorce was entered September 27, 1943. The judgment awarded custody of the infant child to its father Lyman DeFord.

Since the divorce, petitioner has married twice and has lived in various places. She now lives with her present husband and his four children in a three-room apartment in Nederland, Texas.

On August 10, 1945 petitioner came to North Carolina and instituted this proceeding in the juvenile court of Johnston County to obtain custody of said infant. Respondents were duly notified and the matter came on for hearing August 20, 1945 at which time, after consideration of the evidence, oral and documentary, the juvenile judge found the facts and adjudged that the right of custody of the child should remain in the father in the home of his sister, Cynthia DeFord Adams, with the right in petitioner to visit it within this jurisdiction. Petitioner appealed.

When the cause came on for hearing in the court below it was heard by consent on the record and transcript of evidence sent up by the juvenile court. The court found certain facts, concluded that petitioner has failed to show that she 'will establish a home of such permanency as to justify the Court in finding that it would be to the best interests of her child at the present time to award the custody of the child to her', and ordered 'that the said child remain in the custody of Mrs. Cynthia DeFord Adams, as agent of his father, Sgt. Lyman DeFord, until ten days after the close of the school year 1945-46, at which time the mother of the child will be permitted to take the child to her home wherever she may be living and keep him in her custody during the vacation time, and until ten days before the beginning of the school year 1946-47 in Four Oaks, North Carolina, and at that time the father of the child, or Mrs. Cynthia DeFord Adams, will be permitted to go to the home of the mother wherever she may reside at that time, and at their expense bring the child back to Four Oaks, North Carolina, and keep him during the school year 1946-1947, and it is ordered that this interchange of custody of the child, that is, that the child shall remain with Mrs. Adams as the agent of his father during the school time and with his mother during the vacation period, shall continue in effect until further orders of this Court.

'It is further ordered that the mother shall bear the expense of taking the child to her home during the vacation period and the father shall bear the expense of getting the child and returning him to the home of Mrs. Adams, as provided for in this order.'

Respondents excepted and appealed.

C. G. Grady, of Four Oaks, and Hooks & Mitchiner, of Smithfield, for respondents-appellants.

Lyon & Lyon, of Smithfield, for petitioner-appellee.

BARNHILL Justice.

When the court below directed that the infant, James Lyman DeFord, remain in the custody of Mrs. Cynthia DeFord Adams, its paternal aunt, as the agent of its father, the respondent Lyman DeFord, it in effect awarded custody to the father, subject to the provision that the child must be cared for in the home of Mrs. Adams. This part of the order entered is in accord with the decisions of this Court. Newsome v. Bunch, 144 N.C. 15, 56 S.E. 509; In re Jones, 153 N.C. 312, 69 S.E. 217, 138 Am.St.Rep. 670; Latham v. Ellis, 116 N.C. 30, 20 S.E. 1012; In re Lewis, 88 N.C. 31; In re Turner, 151 N.C. 474, 66 S.E. 431; In re Fain, 172 N.C. 790, 90 S.E. 928; In re TenHoopen, 202 N.C. 223, 162 S.E. 619; Patrick v. Bryan, 202 N.C. 62, 162 S.E. 207.

The court below, however, after awarding custody to the father, imposed a condition which permits the petitioner to take the child to her home in Texas, or wherever else she may then be residing, and to keep him during the summer and imposed upon the father the duty and expense of going for and returning it to North Carolina each year just prior to the fall session of school. It is to this part of the order the appellants except. The exception is well founded and must be sustained.

The final judgment or decree is the end for which jurisdiction is exercised and it is only through the judgment and its execution that the power of the court is made efficacious and its jurisdiction complete. 21 C.J.S., Courts, s 21, page 35.

'The existence of this power of a court over its judgments and processes is absolutely necessary in order to prevent the abuse of process and the oppression of suitors * * *. ' 14 Am.Jur. 374.

Therefore a court will not adjudicate where it cannot enforce the adjudication, or turn its suitors over to another tribunal to obtain justice, or vest the losing litigant with the power to defeat...