Ridenhour v. Rioenhour

• Decision Date: 31 October 1945
• Docket Number: No. 380.,380.
• Citation: 225 N.C. 508,35 S.E.2d 617
• Court: North Carolina Supreme Court
• Parties: RIDENHOUR. v. RIOENHOUR.

35 S.E.2d 617

225 N.C. 508

RIDENHOUR.

v.RIOENHOUR.

No. 380.

Supreme Court of North Carolina.

Oct. 31, 1945.

Appeal from Superior Court, Cabarrus County; Gwyn, Judge.

Habeas corpus proceeding by Carl B. Ridenhour against Faye K. Ridenhour involving custody of children. From a judgment of February term 1945 awarding sole custody of children to Faye K. Ridenhour, and from a judgment of April term 1945 requiring payment of monthly installments for support and maintenance of the children, Carl 13. Ridenhour appeals.

Judgment of February term affirmed, and as to judgment of April term there is error.

Petition for writ of habeas corpus between husband and wife, who are living in a state of separation, without being divorced, in respect to the custody of their children, two sons aged 13 and 11 years, respectively, under provisions of G.S. § 17-39.

The petitioner for causes set forth in his petition prayed that a writ of habeas corpus be granted requiring respondent to bring and produce their children, naming them, before the court; that the court inquire into the cause of their restraint; and that their custody be restored to petitioner to the end that they may be returned to their rightful home.

Pursuant thereto, a writ of habeas corpus directed to respondent was issued on January 26, 1944, by Armstrong, J., of 15th Judicial District of North Carolina, requiring her to produce the said children before said judge at court house of Rowan County in Salisbury, North Carolina, at 2:00 o'clock P.M., on February 15, 1944, showing authority and cause of their restraint, and "there to receive, abide by, and perform such orders as may be made in the premises."

Respondent for causes averred in her answer to the petition of petitioner prayed the court to find that she is a fit and suitable person to have the custody and control of their said children, and that the custody of them be awarded to her.

The cause was first heard in Salisbury at time and place above specified, and then was continued by consent of petitioner and of respondent to be heard at regular term of Superior Court of Cabarrus County on February 28, 1944, before Armstrong, J., as aforesaid, and being heard then the court made these specific findings of fact, briefly stated: (1) That petitioner and respondent are husband and wife, living separateand apart without divorce; (2) that respondent left the home of petitioner on or about December 14, 1943, without any apparent fault on part of petitioner; (3) that each of the parties hereto is a person of good moral character, and that there is nothing in the evidence reflecting on either of the parties that forgiveness and forbearance could not overcome; (4) that petitioner and respondent maintain a well furnished home, in a wholesome and Christian section, in Cabarrus County, provided with all the necessities of life, and within easy access "to the public schools of the county, " where the children lived until December 14, 1943, when respondent took them with her; and (5) that the best interests of the children will be promoted by placing them in the custody of petitioner, their father, "until the further orders of the court." Thereupon, by order dated March 3, 1944, the court awarded to petitioner the full custody of said children "until the further orders of the court, " but granted to respondent the privilege of seeing the children at any and all times without any interference on the part of petitioner, or any other person.

Thereafter, when the cause came on for hearing at June Term, 1944, of Superior Court of Cabarrus County before Armstrong, J., presiding, upon petition of respondent that the cause be re-opened and the judgment theretofore entered be modified, and permanent custody of children be awarded to her, the court made additional findings of fact, substantially these: (1) That the children remained with respondent until May 2, 1944, when petitioner obtained their custody and has since had the care, custody and control of them; (2) that there has been no reconciliation between petitioner and respondent, and it now appears that the possibility of a complete reconciliation is remote if not impossible; and (3) that the best interest of the children will be best promoted by placing them in the custody of their mother a part of the time in order that they may have the benefit of a mother's care and love during the formative period of their childhood. And thereupon the court, in its discretion, entered an order modifying the order entered at February Term, 1944, as follows: That the children remain in the care, custody and control of the petitioner until September 1, 1944, on which date they shall be delivered to respondent and be under her care, custody and control until 1 March, 1945; and that thereafter the children shall remain under the care, custody and control of petitioner during the period from March 1 to September 1 of each year, and under the care, custody and control of respondent during the period from September 1 to March 1 of each year, "until further order of the court, " and "that this cause be retained on the docket of the Superior Court of Cabarrus County, as this judgment is not intended to be a final determination of the rights of the parties touching the care, custody and control of said children, and on change of conditions properly established the question may be further heard and determined." This order was "signed in open court—the 12th day of June 1944."

At the February Term 1945 of Superior Court of Cabarrus County which began February 26, 1945, the case was placed upon the regular printed trial calendar for said term. No other notice was given by the respondent that a motion to modify the order of Armstrong, J., entered June 12. 1944, would be made, and no petition to reopen the matter and modify said judgment, and no additional affidavits were filed. But on late afternoon of February 27, 1945, counsel for respondent asked the court, Gwyn, J., presiding, "to take up for disposition the hearing in said case and to modify the order" of Armstrong, J., entered June 12, 1944. Counsel for the respective parties then informed the court as to the status of the matter. Whereupon, the court intimated a disposition not to disturb the said order, and "with that intimation from the court, nothing further was done at that time."

The court then announced that the term would expire by limitation "and practically everybody, including most of the lawyers, left the court room." And "the trial judge, with intention to leave the court and return to his home in Reidsville, went down the steps from the court room and into the hallway on the first floor of the court house building", and "as he was passing in close proximity to the office of the clerk of the court the minor son of respondent * * * aged fourteen, approached the judge showing considerable emotion—being in tears." The court understood by his action that he wanted to say something about the proceeding then pending between his mother and father. After he had spoken a few words, the respondent, together with the second child, approached and undertook to mention the matter of the proceeding. The courtpromptly informed respondent that if the matter were discussed it would have to be in the presence of the parties concerned, and in the court. Whereupon, the judge immediately requested the clerk of the court to notify all the parties that court would be held the following day, and that the Ridenhour case would be heard. The court personally called the office of the attorney for petitioner, to inform him of the fact that the case would be heard the following morning at 9:30 o'clock, and the attorney not being in his office, a message was left to that effect.

On the following morning, February 28, 1945, at 9:30 o'clock, the petitioner and his attorney were in court, and when the matter was called, pe...