Rothman v. Rothman

• Decision Date: 22 October 1969
• Docket Number: No. 6912DC469,6912DC469
• Court: North Carolina Court of Appeals
• Parties: Joyce Mann ROTHMAN v. Jacob ROTHMAN. Jacob ROTHMAN v. Joyce Mann ROTHMAN, Israel Mann and Ruth Mann.

Page 140

170 S.E.2d 140

6 N.C.App. 401

Joyce Mann ROTHMAN v. Jacob ROTHMAN.

Jacob ROTHMAN v. Joyce Mann ROTHMAN, Israel Mann and Ruth Mann.

No. 6912DC469.

Court of Appeals of North Carolina.

Oct. 22, 1969.

Moses & Diehl, by Philip A. Diehl, Raeford, for plaintiff appellee.

Bryant, Lipton, Bryant & Battle, by James B. Maxwell, Durham, and Minor, Thompson, Savage & Smithers, by Joseph B. Beneditti, Richmond, Va., for defendant appellant.

MORRIS, Judge.

This is an alimony and child custody proceeding which raises questions of conflicts of laws. Defendant presents four assignments of error. The first is directed to the refusal of the court to grant full faith and credit to the Virginia decree, the second is directed to the refusal of the court to dismiss the action under the doctrine of Res judicata, the third is to the court's receiving evidence at the hearing and to the court's findings of fact and conclusions of law, and the fourth is to the signing of the order. We will consider these assignments of error collectively.

The cases are legion on the point that the primary consideration in custody cases is the welfare of the child or children involved. In is well established in North Carolina that a change in circumstances must be shown before an order relating to custody, support or alimony may be modified. Shepherd v. Shepherd, 273 N.C. 71, 159 S.E.2d 357 (1968); In Re Marlowe, 268 N.C. 197, 150 S.E.2d 204 (1966); Elmore v. Elmore, 4 N.C.App. 192, 166 S.E.2d 506 (1969) and statutes, texts and cases there cited. G.S. § 50--13.7, cited in Elmore, entitled 'Modification of order for child support or custody' states:

'(b) When an order for custody or support, or both, of a minor child has been entered by a court of another state, a court of this State may, upon gaining jurisdiction, and upon a showing of changed circumstances, enter a new order for support or custody which modifies or supersedes such order for custody or support.'

The facts of this case dictate that this statute must be applied and that in order for the Hoke County District Court to modify the Virginia decree, that court must gain jurisdiction and a change of circumstances must be shown.

By virtue of the physical presence of the child within the boundaries of this State, the Hoke County District Court has jurisdiction, upon a proper showing, to modify the Virginia decree as it pertains to the custody of the child. G.S. § 50--13.5(c)(2), par. a. It is apparent from the record that plaintiff neither alleges nor proves any change of circumstance which would justify the Hoke County District Court in modifying the Virginia decree as it did by awarding custody of the minor child to plaintiff. Plaintiff cites in her brief In Re Craigo, 266 N.C. 92, 145 S.E.2d 376 (1965), and Cleeland v. Cleeland, 249 N.C. 16, 105 S.E.2d 114 (1958), on the point that the full faith and credit clause of the United States Constitution, Article IV, Section 1, does not conclusively bind the North Carolina courts to give greater effect to a decree of another state than it has in that state or to treat as final and conclusive an order of a sister state which is interlocutory in nature. We agree. However, these cases are applicable only in determining that the courts of North Carolina may hear matters in a custody proceeding. There must still be a showing of changed circumstances before our courts may modify the order of a sister state, a fact which plaintiff admits in her brief.

Section 20--108, Code of Virginia (1950), provides:

'The court may, from time to time after decreeing as provided in the preceding section (power to confer custody), on petition of either of the parents, or on its own motion or upon petition of any probation officer or superintendent of public welfare, which petition shall set forth the reasons for the relief sought,...