Spence v. Durham

• Decision Date: 31 August 1973
• Docket Number: No. 18,18
• Citation: 283 N.C. 671,198 S.E.2d 537
• Parties: Susan Durham SPENCE v. James Robert DURHAM et al.
• Court: North Carolina Supreme Court

Page 537

198 S.E.2d 537

283 N.C. 671

Susan Durham SPENCE v. James Robert DURHAM et al.

No. 18.

Supreme Court of North Carolina.

Aug. 31, 1973.

Hudson, Petree, Stockton, Stockton & Robinson by Norwood Robinson, and White & Crumpler, by Fred G. Crumpler, Jr., Winston-Salem, for Susan Durham Spence, plaintiff appellant.

Womble, Carlyle, Sandridge & Rice by W. P. Sandridge, Winston-Salem, for Mr. and Mrs. James Robert Durham (parents of plaintiff).

Hartfield, Allman and Hall, by Roy G. Hall, Jr., James W. Armentrout, and Weston P. Hatfield, Winston-Salem, for Ronald Kenneth Spence, Richard T. Spence, and Frances Hawkins Spence, defendant appellees.

SHARP, Justice:

Plaintiff, Susan Durham Spence, born 11 June 1935, instituted this action on 24 May 1971 to obtain the custody of her two minor daughters, Fay Frances Spence, born 15 June 1962, and Dianna Jeannene Spence, born 5 June 1964. The defendants are Ronald Kenneth Spence, the children's father (Spence); James Robert Durham and wife, Faye M. Durham, the parents of plaintiff (maternal grandparents or Durhams); and Richard T. Spence and wife, Frances H. Spence, the parents of Ronald K. Spence (paternal grandparents). All parties are properly before the court and participated in the proceeding in which the judgment Sub judice was rendered.

Plaintiff and her parents are residents of Winston-Salem, Forsyth County, North Carolina. Spence is a resident of the State of Kansas; the paternal grandparents reside in the State of Georgia. The children have been physically present in this State since September 1970.

The following events, stated chronologically insofar as possible, disclose a portion of the background of this controversy:

Plaintiff and Spence met in 1959 at the University of Georgia, from which each obtained a bachelor's degree. Thereafter, on 9 September 1960, they were married in Winston-Salem, North Carolina. In 1961 both enrolled as graduate students at the University of Virginia. There Spence pursued courses in advanced chemistry, and plaintiff studied speech pathology. Spence, who became 'disinterested in chemistry,' dropped out of school in late 1961 and obtained employment with the Sperry Piedmont Company as an engineering analyst. Plaintiff continued her studies under a scholarship. She obtained the degree of Master of Education in Speech Pathology and Audiology shortly before the birth of her first child, Fay.

In April 1963, after Spence had worked for eighteen months with the Sperry Company, he and plaintiff moved to California. There, for about two years, he was employed by 'Lockheed Missiles and Space Company in the field of computers' at Sunnydale. During this period plaintiff's second child was born, and she worked part of the time in a hospital at Mountain View, where the family lived. In May 1965 Spence left Lockheed to work for Univac, a division of Sperry Rand Corporation, in San Diego. In the fall of 1966, with the idea that they might work together, both plaintiff and Spence enrolled in the University of California at San Diego for studies in linguistics. To further his studies Spence gave up his job with Univac in December 1966 and obtained employment at the University of California. Plaintiff worked at the speech and hearing center there from August 1965 until late August 1967, when she left California to teach at the University of Richmond in Virginia.

Plaintiff's move to Richmond was for professional and financial reasons. Her sojourn there was not intended as a separation from Spence, who visited her a number of times in Richmond. At different times between August and December, Spence and the respective grandparents cared for the children. In early December, Spence withdrew from the University of California and went to the home of his parents in Georgia. At that time he delivered the children to plaintiff in Richmond, and they remained with her there until the completion of her contract in June 1968.

From 15 January 1968 until March 1970, when he was 'laid off in a mass reduction in force,' Spence worked for Lockheed at Smyrna, Georgia. In June 1968 plaintiff and the two children joined Spence in Smyrna, where they shared his one-bedroom 'bachelor's apartment,' and plaintiff started a private practice in speech therapy. In July 1968 an 18-year-old girl, Linda Preyer, who had kept house for them in San Diego, came to live with plaintiff and Spence in the bachelor's apartment. In the fall plaintiff and the children moved into an adjoining apartment.

On 9 January 1969 Spence brought an action for divorce against plaintiff in the Superior Court of Cobb County, Georgia. On that morning he informed plaintiff that he would vacate his apartment during the day. Plaintiff took the children to school as usual and, at 3:30 p.m., she went for them. She left them in the playroom of her speech and language school, where they were to remain while she saw her last pupil of the day. That task completed she returned to the playroom to find the children gone. It was 'days later' before she learned that Spence had taken the children to the home of their paternal grandparents about sixty miles away. Upon inquiry the paternal grandmother had denied that the children were there and that she had any knowledge of their whereabouts.

Plaintiff was not permitted to see the children until after 3 February 1969, when the Georgia court issued a temporary order giving Spence's parents custody of the children Pendente lite. That order denied both Spence and plaintiff any access whatever to the children except that each was allowed one two-hour visitation each week in the home of the paternal grandparents.

On 6 February 1969 the maternal grandparents petitioned the court to allow them to intervene in the pending divorce action and were allowed to do so. They prayed that, if the court should conclude neither plaintiff nor Spence was a suitable custodian the custody of the two children be awarded to them. The paternal grandparents were also permitted to intervene. Thus, the parties to the Georgia proceeding and to this one are the same.

On 2 June 1969, the day the case was scheduled for trial, all parties were present in court and represented by counsel. Plaintiff did not contest Spence's action for divorce, and he obtained an absolute divorce on the grounds of mental cruelty.

On the issue of custody the court heard no evidence. That controversy was determined by a consent judgment, which was signed by the judge and by counsel for all parties. In pertinent part this judgment is summarized below:

1. The court awarded custody of the two children to the paternal grandparents during the months of June, July, and August of each year and to the maternal grandparents during the months of September through May. Plaintiff and Spence were given the right to visit the children in the home of their respective parents without restriction. Each was, however, enjoined from removing the children from the grandparents' homes, and the grandparents were under positive orders to prevent the children's removal. During the school months, when the Durhams had custody, the paternal grandparents had the right to have the children visit in their home during all school holidays. The judgment provided for alternative divisions of custody between the grandparents in the event of the death of one or more grandparents, the final award being to the last surviving grandparent.

2. Both Spence and plaintiff were relieved of all obligation to support their children. Neither maternal nor paternal grandparents were to look to either of them for reimbursement of any sums expended for the maintenance and education of the children. The grandparents having custody were to pay the children's expenses during the time they had them. The Durhams were to send the children to private schools in Winston-Salem, and the grandparents receiving the children at the end of each custody period were to pay the cost of transporting them to their home.

3. Both maternal and paternal grandparents canceled all debts which either plaintiff or Spence owed them.

4. The maternal grandparents were required to give a bond in the sum of $10,000.00 conditioned upon their compliance with the consent judgment and any future orders of the court. The clerk of the Superior Court of Cobb County was appointed process agent for the Durhams in any proceedings regarding the custody of the children and any breach of the terms of the bond.

As directed by the judgment, on 20 June 1969, the Durhams executed and delivered to the Sheriff of Cobb County a compliance bond in the sum of $10,000.00.

Spence testified that within two weeks after he instituted divorce proceedings against plaintiff, on 20 January 1969, he was in touch with Dr. Arlene Gregory, whom he had met in 1955 when she was a pre-medical student. He had courted her unsuccessfully just before he married plaintiff, 'perhaps on the rebound.' In July 1969 Spence and Dr. Gregory were married. At that time she had just finished her graduate residency in anesthesiology.

In late August 1969 the Spence children went to the home of the Durhams in Winston-Salem. Except for school holidays, which they spent with the paternal grandparents, the children remained with the Durhams until June 1970 when they returned to Georgia as required by the consent judgment.

In the summer of 1969 plaintiff left Smyrna and went to Rome, Georgia to become the director of the Northwest Georgia Speech and Hearing Center, a fourteen-county governmental speech pathology and hearing clinic for children and adults. In September 1970 she moved to Winston-Salem to become head of the department of speech pathology at the Medicenter of America's facility there.

In September 1970 the Spence children returned to the home of the Durhams in Winston-Salem for the school year 1970--71.

On 24 May 1971, without the knowledge of her parents, plaintiff brought this action to obtain the custody of her...