In Re Morris.

• Decision Date: 11 October 1944
• Docket Number: No. 100.,100.
• Citation: 31 S.E.2d 539,224 N.C. 487
• Court: North Carolina Supreme Court
• Parties: In re MORRIS.

31 S.E.2d 539

224 N.C. 487

In re MORRIS.

No. 100.

Supreme Court of North Carolina.

Oct 11, 1944.

Appeal from Superior Court, Buncombe County; Zeb V. Nettles, Judge.

Proceeding in the matter of the adoption of Augustus Reynolds Morris, a minor, by William Tazewell Morris and wife, opposed by Edith Morris Muhler, the minor's mother. From a judgment confirming a final order of adoption, Edith Morris Muhler appeals.

Error and remanded.

Proceeding for adoption for life of Augustus Reynolds Morris a child born December 2, 1934.

These pertinent facts, appearing in the record on this appeal, are sufficient and necessary to present the determinative question on the appeal:

In a proceeding entitled "In the Matter of Augustus Reynolds Morris", in the Domestic Relations Court of Buncombe County, upon petition of W. T. Morris, paternal uncle, and regarding the custody of Augustus Reynolds Morris, minor child of Ben W. Morris and Edith Sluder Morris, who were then divorced, and after notice to the respondents "Mr. and Mrs. Charles Muhler", the judge of said court entered an order on June 2, 1942, in which after reciting that no evidence had been presented in support of contentions of respondents that Charles Muhler had obtained a divorce from his wife, and was lawfully married to Edith Sluder Morris, the mother of Augustus Reynolds Morris, it is found as a fact that "The respondents are not fit or suitable persons to maintain a home and have the custody of said child unless lawfully married to each other, which marriage they have failed to establish", and thereupon committed the said child "to the care, custody and control of the said W. T. Morris upon conditions that the said W. T. Morris and his wife shall continue to furnish and maintain a suitable home for said child and therein properly maintain, support and educate him."

Subsequently, on March 31, 1943, the judge of said Domestic Relations Court acting upon petition filed March 16, 1943, entered a judgment in which, among other things, it is recited that Edith Sluder Morris and Charles W. Muhler were married on September 21, 1942; that on May 13, 1942, the court took jurisdiction of the child, and upon the finding of fact that his mother, Edith Sluder Morris, and the said Charles W. Muhler were not fit and suitable persons to have the custody of said child, committed him to the care, custody and control of W. T. Morris and his wife, Evelyn B. Morris, upon certain conditions, with which they have faithfully complied; and that, though "the respective homes presently offered said child by the petitioners and the respondents in this proceeding are physically sufficient and proper homes", the "child has received better care, has shown more progress and has been happier since May 13, 1942, while residing in the home of W. T. Morris and wife, Evelyn Morris, with his brother, William T. Morris, than he had experienced prior thereto while residing alone with his mother, Edith Sluder Morris, and the said Charles W. Muhler, and the general welfare of the said child will be best served and promoted by his remaining with his brother in the home and under the custody and control of the said W. T. Morris and wife". And, thereupon, the court denied the petition of the mother and her husband for that (1) the court has jurisdiction of said child and his custody, and (2) the order of June 2, 1942, ought not to be set aside, and ordered that the child remain in the home and under the care, custody and control of W. T. Morris and his wife, "subject to the further orders" of the court, and upon certain conditions, among which the mother was given the privilege of visiting the child at his home at reasonable intervals and under proper circumstances, and of taking the child from time to time for short day visits with her. And the court retained jurisdiction of the child and of the parties to the proceeding "for such further orders as the continued welfare of said child and changing circumstances may require". From neither of the foregoing orders was an appeal taken. But later the mother petitioned for modification of the order of May 31, 1943, with regard to the time she should take the child, upon which petition the judge of the Domestic Relations Court entered order on September 24, 1943, from which the mother appealed.

On such appeal the judge of Superior Court after finding certain facts, including unfitness of mother "at this time" and of her husband to have care and custody of the child, affirmed and approved "in all respects" the said orders of May 31, 1943, and September 24, 1943, "with the following clarification and none other namely": Then follows provision for the mother having the child with her between the hours 9 a. m. and 7 p. m. on Saturdays, except on Christmas Day, 1943, he should remain at the home of W. T. Morris until 11 o'clock in the morning.

In the meantime and on June 2, 1942, after the order regarding the custody of the child had been entered by the judge of the Domestic Relations Court of Buncombe County as aforesaid, the said W. T. Morris and his wife, designated as William Tazewell Morris and Evelyn Bailey Morris, filed a petition before the clerk of the Superior Court of Buncombe County for the adoption of the said Augustus Reynolds Morris for life.

In this petition it is alleged, among other things, "that the father of said child has given his consent to the adoption, and the mother of said child has been adjudged as a not fit or suitable person to maintain a home and have the custody of said child". Summons in this adoption proceeding was duly issued June 2, 1942; the service of same was accepted by Ben Morris, the father of the minor; and alias summonses regularly and consecutively issued for the mother therein named Edith Morris Muhler, was duly served upon her with copy of petition, on November 5, 1942, and she filed answer to the petition on December 2, 1942.

In the answer so filed Edith Morris Muhler, protesting the said proposed adoption of Augustus Reynolds Morris, her minor son, then living with the petitioners at their home in Asheville, denies all other material allegations of the petition. She avers particularly that "the petitioners do not have the lawful custody of and care of the said minor child", and further answering the petition she as respondent avers among other things, briefly stated, that prior to 1937 Ben Morris, the father of Augustus Reynolds Morris and another son born of their marriage, abandoned her and them and "failed, neglected and refused to support" them, and that she had the sole care and custody of said child; that on June 27, 1939, in the General Coun ty Court of Buncombe County she obtained an absolute divorce from said Ben W. Morris, and because of things alleged the Superior Court has sole jurisdiction of the matters relating to the care and custody of the minor child, Augustus Reynolds Morris; that the purported order made by the Domestic Relations Court on June 2, 1942, is void and of no effect for that said court had no jurisdiction to make such order or to take any action with relation to the care and custody and tuition of said minor child of respondent; and that she is now...