Thomas v. Thomas , 259 N.C. 461 ( 1963 )

130 S.E.2d 871 (1963) 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 upon the merits, though it may be pleaded in the answer, with the denials and allegations of the complaint and other defenses."

See also G.S. §§ 1-127, 1-133, and 1-134.

Blankenship v. Blankenship, 256 N.C. 638, 124 S.E.2d 857, is clearly distinguishable. The defendant in this case instituted an action based on G.S. § 50-16 against the plaintiff in this case on 31 January 1958 in the superior court of Warren County, entitled Nancy Peete Blankenship v. Freneau Merritt Blankenship. This case, an action for absolute divorce, was instituted on 16 February 1960 in the general county court of Buncombe County. Further, after the decree awarding Nancy Peete Blankenship the custody of the children was entered in the superior court of Warren County, there had been no change of circumstances affecting the welfare of the children before the entry of a decree on 29 March 1961 by the general county court of Buncombe County granting plaintiff's motion that that court take jurisdiction over the matter of the custody of the two children born of the marriage. In the instant case, there has been a material change of circumstances subsequent to the entry of Judge McKinnon's order awarding the custody of the children to plaintiff, in that since that time plaintiff has conceived and given birth to an illegitimate child.

A decree awarding the custody of minor children determines the present rights of the parties to the contest with respect to such custody, is not permanent in its nature, and is subject to judicial alteration or modification upon a change of circumstances affecting the welfare of the children. This is one of the exceptions to the general rule that ordinarily one superior court judge has no power to alter, modify, or reverse the judgment of another superior court judge previously made in the same action. Griffin v. Griffin, 237 N.C. 404, 75 S.E.2d 133; Neighbors v. Neighbors, 236 N.C. 531, 73 S.E.2d 153; Hardee v. Mitchell, 230 N.C. 40, 51 S.E.2d 884; In re Means, 176 N.C. 307, 97 S.E. 39; Strong's N.C. Index, Vol. 1, Courts, sec. 9, p. 655. In the instant case, plaintiff's going to California after Judge McKinnon's order, and returning with a bastard child begotten on her body by Charles Howard was a change of circumstances affecting the welfare of the children, which empowered Judge Morris to alter or modify Judge McKinnon's order if he deemed it necessary to do so to further the welfare of the children.

"The welfare of the child in controversies involving custody is the polar star by which the courts must be guided in awarding custody." Kovacs v. Brewer, 245 N.C. 630, 97 S.E.2d 96.

Plaintiff assigns as error Judge Morris' conclusion that defendant is a fit and proper person to have the custody of the two children born of the marriage. Though the findings of fact do not show defendant as a paragon of fatherly love and care, yet they do show he bears a good reputation in the community where he lives, which finding of fact is unchallenged. We think after a study of the record and of Judge Morris' order this conclusion should be sustained.

The unchallenged finding of fact by Judge Morris is that these two children for most of their lives have lived in the home of their maternal grandparents. Judge Morris awarded the custody of these two children to defendant, on condition that the physical custody of these two children be vested in their maternal grandparents where they live, and required defendant to pay for their support $20.00 a week.

The crucial findings of fact in Judge Morris' order are supported by competent evidence and they support his conclusions, which together support his order. Faced with a difficult problem the able and experienced trial judge seems to have made a wise decision, which will be for the best interests of the two children, the innocent victims of a broken marriage. We cannot forecast the future, but if there should be a change of circumstances adversely affecting the welfare of these children, the court is empowered to act, because all decrees with respect to custody and support of minor children are subject to further orders of the court. Blankenship v. Blankenship, supra.

All plaintiff's assignments of error are overruled. Judge Morris' order is

Affirmed.