Stanback v. Stanback, 603
| Decision Date | 15 December 1965 |
| Docket Number | No. 603,603 |
| Citation | 266 N.C. 72,145 S.E.2d 332 |
| Court | North Carolina Supreme Court |
| Parties | Fred J. STANBACK, Jr. v. Vanita B. STANBACK. |
Kluttz & Hamlin, by Clarence Kluttz, Salisbury, Hudson, Ferrell, Petree, Stockton, Stockton & Robinson, by Norwood Robinson, and Robert A. Melott, Winston-Salem, for plaintiff appellant.
Kesler & Seay, by Thomas W. Seay, Jr., Salisbury, Walser, Brinkley, Walser & McGirt, by Walter F. Brinkley, Lexington, George L. Burke, Jr., Salisbury, for defendant appellee. HIGGINS, Justice.
The only question now presented for decision is the validity of the order entered by Judge Gwyn on June 19, 1965, modifying Judge Walker's custody order of April 26, 1965. In divorce actions, whether for the dissolution of the marriage or from bed and board, the court in which the action is brought acquires jurisdiction over the custody of the unemancipated children of the parties. Cox v. Cox, 246 N.C. 528, 98 S.E.2d 879. The jurisdiction continues even after divorce. Reece v. Reece, 231 N.C. 321, 56 S.E.2d 641. The children of the marriage become the wards of the court and their welfare is the determining factor in custody proceedings. Griffin v. Griffin, 237 N.C. 404, 75 S.E.2d 133. As children develop their needs change; nevertheless, the needs must be supplied by the parent whose ability to supply them may change. For these reasons orders in custody proceedings are not final.
Ordinarily, there is no appeal from one Superior Court to another. Neighbors v. Neighbors, 236 N.C. 531, 73 S.E.2d 153. In matters of law or legal inference the appeal must be from the Superior Court to the Supreme Court. However, because of the court's paramount regard for the welfare of children whose parents are separated, the court, for their benefit, and upon proper showing, may modify or change a custody award. Thomas v. Thomas, 259 N.C. 461, 130 S.E.2d 871; Smith v. Smith, 241 N.C. 307, 84 S.E.2d; 891; Cameron v. Cameron, 232 N.C. 686, 61 S.E.2d 913.
In this case Judge Walker, on April 22, 1965, entered his custody order based upon the verified pleadings and the affidavits submitted by both parties. In the complaint the plaintiff alleged his fitness and the defendant's unfitness for the children's custody. The plaintiff's affidavits--43 in number--tended to support the allegations of his complaint. The defendant's answer alleged her fitness and the plaintiff's unfitness for custody. Her affidavits--four in number--tended to support her claim. Dr. Green, her personal physician since January, 1963, and Dr. Corpening, who had treated the children, made affidavit that they had never observed any signs of alcoholism or lack of proper care for the children. Judge Walker made the findings set out in the statement of facts and entered his order awarding custody to the plaintiff. In addition to custody, the court awarded the home to the defendant and required the plaintiff to pay $100.00 a week alimony and the expenses incident to keeping up the house. The court also awarded defendant's attorneys $2,000.00.
Sixteen days subsequent to Judge Walker's order the defendant made a motion in the cause before Judge Gwyn, '(T)hat the court investigate and consider in this matter * * * the custody (of the two children) and make such order as to the court seems just and proper and for the best interest of the infants * * *' The plaintiff, by motion, challenged the jurisdiction of Judge Gwyn upon the ground that Judge Walker had decided the controversy and that a change in condition was not alleged and had not taken place.
Judge Gwyn conducted a hearing upon the basis of the pleadings, the affidavits before Judge Walker, and in addition 18 new affidavits filed by the plaintiff and 38 filed by the defendant. Among the new affidavits introduced by the defendant were three from New York doctors specializing in psychiatry. Drs. Sullivan, Rule, and Lipton examined the defendant on May 27 in New York. Each gave as his opinion on the basis of this examination that the defendant is well able to care for...
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