In Re Herring , 268 N.C. 434 ( 1966 )

150 S.E.2d 775 (1966) 268 N.C. 434

In re Sandra Genine HERRING, an Infant.

No. 358.

Supreme Court of North Carolina.

November 2, 1966.

Sasser & Duke, Goldsboro, H. E. Phillips, Kenansville, for petitioner appellant.

George R. Kornegay, Jr., Mt. Olive, for respondent appellee.

PLESS, Justice.

In what are, for all practical purposes, two ex parte proceedings, the Clerk of the Superior Court of Wayne County awarded the custody of this little girl to Mrs. Ferrell who was a resident of that County, and shortly afterwards the Clerk of the Superior Court of Duplin County in a similar proceeding awarded the custody to his constituent, Mrs. Herring. The child has at all times in question been residing with Mrs. Ferrell in Wayne County and the jurisdiction of the matter is properly laid there.

G.S. § 17-39.1 provides that "In addition to * * * other methods authorized by law for determining the custody of minor children, any superior court judge having authority to determine matters in chambers in the district may, in his discretion, issue a writ of habeas corpus requiring that the body of any minor child whose custody is in dispute be brought before him or any other qualified judge. Upon the return of said writ the judge may award the charge or custody of the child to such person, organization, agency or institution for such time, under such regulations and restrictions, and with such provisions and directions, as will, in the opinion of the judge, best promote the interest and welfare of said child. The cause may be retained for the purpose of varying, modifying or annulling any order for cause at any subsequent time."

Pursuant to this statute, the paternal grandmother, Mrs. Herring, obtained a writ of habeas corpus which was made returnable before Judge Bundy. When the matter came on to be heard, the Respondent, Mrs. Ferrell, entered what she called a Special Appearance, in which she denied the jurisdiction of Judge Bundy. His Honor signed an order that "the Court being of the opinion that it does not have jurisdiction to hear and determine the matters in controversy * * * it is ordered, adjudged and decreed that the same be dismissed and the petitioner taxed with the costs."

The record does not disclose that any evidence was heard before Judge Bundy and no facts were found. The statute quoted above 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. As said in the recent case In re Marlowe, 268 N.C. 197, 150 S.E.2d 204, "the control and custody of minor children cannot be determined finally. Changed conditions will always justify inquiry by the courts in the interest and welfare of the children, and decrees may be entered as often as the facts justify."

Since no judge has determined what will "best promote the interest and welfare of the child" the Petitioner is entitled to a hearing for that purpose. The judge presiding in the Eighth Judicial District and the Resident Judge thereof have jurisdiction.

The judgment of Judge Bundy is hereby

Reversed.