Thomas v. Thomas, 530

• Decision Date: 22 May 1963
• Docket Number: No. 530,530
• Citation: 259 N.C. 461,130 S.E.2d 871
• Parties: Eloise Lamm THOMAS v. Frank H. THOMAS.
• Court: North Carolina Supreme Court

Page 871

130 S.E.2d 871

259 N.C. 461

Eloise Lamm THOMAS v. Frank H. THOMAS.

No. 530

Supreme Court of North Carolina.

May 22, 1963

Neill McK. Ross, Lillington, for plaintiff-appellant.

Charles R. Williams and Robert B. Morgan, Lillington, for defendant-appellee.

PARKER, Justice.

Plaintiff assigns as error the following, which Judge Morris in his order calls a finding of fact, but which is in fact a mixed finding of fact and a conclusion: Plaintiff, having admitted in open court that she has lived in adultery with another man, and is the mother of a child other than by her husband, is an unfit person to have the custody and care of the two children born of the marriage between the parties.

Plaintiff contends there is no evidence in the record to support this finding of fact and conclusion. Plaintiff in her verified complaint for absolute divorce alleges: 'That on the 16th day of June, 1960 * * * the plaintiff and defendant separated from each other, and have continuously lived separate and apart from each other since said date.' Plaintiff in her reply in the divorce action verified on 4 December 1962 states: 'It is admitted that the plaintiff is mother of a child about six months of age.' Therefore, plaintiff admits in her pleadings that this child six months old on 4 December 1962 was conceived by her about 15 months after she and her husband had separated and since said separation had continuously lived separate and apart. Consequently, plaintiff's pleadings in her divorce action support the finding of fact that plaintiff is the mother of a child other than by her husband. In addition, her father testified before Judge Morris that plaintiff went to California, he could not remember the date, and that she came back with a child, and told him Charles Howard was the father of the child. We find nothing in the record to support the finding of fact that plaintiff lived in adultery with another man, though a reading of the testimony of plaintiff's father permits a strong conjecture that plaintiff had an adulterous relationship with one Charles Howard in California. We presume that when Judge Morris stated in his order that plaintiff admitted in open court, he referred to admissions in her pleadings in the divorce action. We consider Judge Morris' finding of fact that plaintiff is the mother of a child other than by her husband is amply supported by allegations and admissions in her pleadings in the divorce action, and by the testimony of her father, and that this is sufficient to support the conclusion of the judge that plaintiff is an unfit person to have the custody and care of the two children born of the marriage between the parties. It is elementary learning that Judge Morris' findings of fact based on competent evidence are conclusive on appeal. McEachern v. McEachern, 210 N.C. 98, 185 S.E. 684; Spitzer v. Lewark, 259 N.C. 49, 129 S.E.2d 620.

Plaintiff further contends in respect to this assignment of error that Judge McKinnon's order awarding her the custody of the two children born of the marriage, entered in the action instituted by her by virtue of G.S. § 50-16, barred Judge Morris in this action from concluding that she was an unfit person to have the custody of these two children; that she had pleaded in her reply Judge McKinnon's order as a plea in bar; and that Judge McKinnon's order awarding her the custody of the children should have been reaffirmed by Judge Morris. This contention is untenable.

The only part of the record in plaintiff's action against defendant, her husband, based on G.S. § 50-16 is Judge McKinnon's order. It appears from what is in the record before us and from Judge McKinnon's order that this action was instituted in the superior court of Harnett County, that the parties at the time were residents of this county and are now, and that the two children born of the marriage were living in this county then and are now. The present action was instituted in the superior court of Harnett County. The jurisdiction of matters relating to the custody of these two children was invoked by the same parties in two actions in the same court in the same county. It is indubitable that the superior court of Harnett County had jurisdiction of matters relating to the custody of these children. There is nothing in the record to indicate that either plaintiff or defendant objected to Judge Morris passing on the matter of custody in the divorce action based on G.S. § 50-6, or that plaintiff, preliminary to a hearing by Judge Morris on the merits of the matter of the custody of these two children, insisted that the matter should be heard on a motion in the cause in her action based on G.S. § 50-16. Under the particular facts here plaintiff has waived any right she might have to have the question of the custody of these two children passed on in her action based on G.S. § 50-16. This Court said in Montague v. Brown, 104 N.C. 161, 10 S.E. 186:

'The pendency of another action when this began, must, under the former practice, have been set up by plea in abatement before pleading to the merits, and now it must be especially averred as a defense, and insisted on, preliminary to a decision...