Robbins v. Robbins

• Decision Date: 10 November 1948
• Docket Number: 456
• Citation: 50 S.E.2d 183,229 N.C. 430
• Parties: ROBBINS v. ROBBINS.
• Court: North Carolina Supreme Court

50 S.E.2d 183

229 N.C. 430

ROBBINS v. ROBBINS.

No. 456

Supreme Court of North Carolina

November 10, 1948

Motion in the cause in the above entitled divorce action for the determination of the custody of the child of the marriage.

Defendant moved to dismiss the motion on the ground that the Superior Court of Wake County was without jurisdiction in the premises, for that before the divorce action was begun a proceeding to determine the custody of the child under G. S s 17-39 had been instituted in Craven County by writ of habeas corpus, and the court there had made orders and acquired and retained jurisdiction of the matter.

Defendant's motion and plea to the jurisdiction were overruled, and defendant excepted and appealed.

E D. Flowers, of Raleigh, for plaintiff-appellee.

Charles L. Abernethy, Jr., of New Bern, for defendant-appellant.

DEVIN Justice.

Defendant's plea raised the question of the jurisdiction of the Superior Court of Wake County to determine the custody of the child of divorced parents on motion in the action in which the divorce judgment had been rendered. The power of the judge, before or after judgment in a divorce action wherein it is alleged there are children, to make orders respecting their custody, is expressly conferred by the statute G.S. s 50-13. The defendant however, contends that jurisdiction as to the custody of the child in this case had already been acquired by the Superior Court in Craven County under the provisions of G.S. s 17-39, pursuant to writ of habeas corpus issued by the judge thereof, and that the subsequent proceedings in Wake should not be held to supersede the jurisdiction previously acquired in Craven, and hence that the court in Wake was without jurisdiction to entertain plaintiff's motion. But it will be noted that the issuance of a writ of habeas corpus under G. S. s 17-39 as a vehicle for determining the custody of a child applies only when the issue arises between 'husband and wife who are living in a state of separation, without being divorced. ' In re Ogden, 211 N.C. 100, 189 S.E. 119, 120. It would seem to follow that when that status has ceased to exist as result of a divorce action and decree wherein the husband and wife and child were before the court, the jurisdiction of the court in which the divorce action was heard is not divested by the proceeding permitted only where undivorced husband and wife were living separate and apart. ...