Sauls, In re, 538
Decision Date | 03 May 1967 |
Docket Number | No. 538,538 |
Citation | 270 N.C. 180,154 S.E.2d 327 |
Parties | In the Matter of the Custody of Harvin Austin SAULS, III. |
Court | North Carolina Supreme Court |
Robert L. Scott, Charlotte, for Harvin Austin Sauls, Jr., petitioner appellee.
Lucas, Rand, Rose, Morris & Meyer, Wilson, Coble, Tanner & Grigg, Albemarle, Ruff, Perry, Bond, Cobb & Wade, Charlotte, for Dorothy Wheeler Sauls, respondent appellant.
The rights of the parties to this controversy have become embogged in a procedural quagmire. As a result, we have the anomalous situation in which petitioner, in his answer to the Wilson County divorce action, pleads respondent's departure from his home in Albemarle on 21 September 1965 as an abandonment which defeats her suit, while the judge presiding in Stanly County denies her motion to dismiss the habeas corpus proceeding pending there because no resumption of marital relations has been shown. It would seem that an unconditional, bona fide resumption of marital relations, if such has occurred, would have vacated any order of custody then in force. Certainly it would destroy the status which, in the beginning, gave the court jurisdiction to issue the writ under G.S. § 17--39. See Hester v. Hester, 239 N.C. 97, 79 S.E.2d 248. We need not, however, pick out way through the procedural quicksands to reach that problem because, In limine, we are here confronted by this question: Was the custody jurisdiction which the Superior Court of Stanly County had previously acquired under G.S. § 17--39 ousted by the institution of the divorce action in the Superior Court of Wilson County? In pertinent part, G.S. § 17--39 provides:
G.S. § 17--39.1, enacted on 7 May 1957, as Chapter 545 of the Session Laws of 1957, provides:
Prior to the enactment of G.S. § 17--39.1, the decisions of this Court made it quite clear that immediately upon the institution of an action for divorce, either absolute or A mensa et thoro, jurisdiction of the custody of the parties previously acquired under G.S. § 17--39 was ousted and vested in the court in which the divorce action was pending. G.S. § 50--13. The rule was succinctly stated by Barnhill, J. (later C.J.), in Phipps v. Vannoy, 229 N.C. 629, 632, 50 S.E.2d 906, 907--908:
'So soon as the between husband and wife resolves itself into, brings about, or is followed by an action for divorce in which a complaint has been filed, the jurisdiction of the court acquired under a writ of Habeas corpus as provided by G.S. § 17--39 is ousted and authority to provide for the custody of the children of the marriage vests in the court in which the divorce proceeding is pending. Robbins v. Robbins, 229 N.C. 430, 50 S.E.2d 183; In re Blake, supra (184 N.C. 278, 14 S.E. 294); McEachern v. McEachern, supra (210 N.C. 98, 185 S.E. 684); In re Albertson, supra (205 N.C. 742, 172 S.E. 411); Tyner v. Tyner, 206 N.C. 776, 175 S.E. 144; Story v. Story, 221 N.C. 114, 19 S.E.2d 136. Jurisdiction rests in this court so long as the action is pending and it is pending for this purpose until the death of one of the parties.
Accord, Swicegood v. Swicegood, N.C., 154 S.E.2d 324; Weddington v. Weddington, 243 N.C. 702, 92 S.E.2d 71; 3 Lee, N.C. Family Law § 222 (3d Ed., 1963).
Did the enactment of G.S. § 17--39.1 change this well established rule and authorize the judge, in his discretion, to use habeas corpus as an alternative or additional remedy to All other authorized methods for determining custody, Including actions for divorce? See 36 N.C.L.Rev. 52, 53 (1957).
In Cox v. Cox, 246 N.C. 528, 530, 98 S.E.2d 879, 882, decided June 28, 1957--approximately two months after the passage of G.S. § 17--39.1--, this Court said:
(Emphasis added.)
In Cleeland v. Cleeland, 249 N.C. 16, 18, 105 S.E.2d 114, 116, petitioner and respondent had been divorced in Virginia. Respondent, a resident of North Carolina, had custody of the children of the marriage. Petitioner, a resident of California, came to North Carolina and filed a petition for habeas corpus to obtain their custody. It was held that habeas corpus was an available remedy, and this statement appears in the opinion:
'Prior to 1957 habeas corpus could not be used to determine the right to the custody of children whose parents had been divorced, In re McCormick, 240 N.C. 468, 82 S.E.2d 406; but by legislative act, c. 545, S.L.1957, G.S. § 17--39.1, the marital status of parents is not now a factor in determining the procedure to obtain custody of a child.'
In In re Herring, 268 N.C. 434, 435, 150 S.E.2d 775, 777, a case in which grandmothers were contending for the custody of their orphan grandchild, it is said: 'The statute quoted above (G.S. § 17--39.1) was enacted for the purpose of giving Judges of the Superior Courts authority to hear and determine the custody of infants in all cases and without regard to previous proceedings.'
Other cases in which G.S. § 17--39.1 has provided the remedy to determine custody are: In re Craigo, 266 N.C. 92, 145 S.E.2d 376 ( ); In re Skipper, 261 N.C. 592, 135 S.E.2d 671 ( ); Murphy v. Murphy, 261 N.C. 95, 134 S.E.2d 148 ; Spitzer v. Lewark, 259 N.C. 50, 129 S.E.2d 620 ( ); Lennon v. Lennon, 252 N.C. 659, 114 S.E.2d 571 ( ).
We have found no case decided since the passage of G.S. § 17--39.1 in which custody has been adjudicated in a habeas corpus proceeding After a divorce action has been instituted. The statements quoted above from Cleeland and from In re Herring were too broad and are hereby disapproved to the extent that they conflict with the rule that the institution of a divorce action ousts custody jurisdiction acquired under habeas corpus. To hold that with the enactment of G.S. § 17--39.1 the legislature gave the judge presiding in the district the discretion to issue a writ of habeas corpus and to hear and determine the custody of all infants, without regard...
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...a court by consent, waiver or estoppel, and therefore failure to ... object to the jurisdiction is immaterial.'" In re Sauls, 270 N.C. 180, 187, 154 S.E.2d 327, 333 (1967) (quoting 1 Strong's North Carolina Index: Courts § 2, at 645-46 (1957) (footnotes omitted)); see also Anderson v. Atkin......
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