Kennedy v. Surratt ( 1976 )

224 S.E.2d 215 (1976) 29 N.C. App. 404

John B. KENNEDY
v.
Nancy R. SURRATT.

No. 7519DC888.

Court of Appeals of North Carolina.

May 5, 1976.

Bell & Ogburn by Deane F. Bell and William H. Heafner, Asheboro, for plaintiff.

Clarence C. Boyan, High Point, for defendant.

BROCK, Chief Judge.

General Statute 50-13.5(b) defines the types of actions in which custody and support of minor children may be determined. Subsection (f) of G.S. 50-13.5 provides for the proper venue for the actions allowed under subsection (b). Subsection (f) provides: "An action or proceeding in the courts of this State for custody and support of a minor child may be maintained in the county where the child resides or is physically present or in a county where a parent resides, except as hereinafter provided." Then two provisos follow. The first proviso reads: "If an action for annulment, for divorce, either absolute or from bed and board, or for alimony without divorce has been previously instituted in this State, until there has been a final judgment in such case, any action or proceeding for custody and support of the minor children of the marriage shall be joined with such action or be by motion in the cause in such action." (Emphasis added.) The second proviso is not pertinent to this case.

"The foregoing proviso, when read in conjunction with the first sentence of this subsection (f) and in conjunction with subsection (b), makes it clear that after final judgment in a previously instituted action between the parents, where custody and support has not been brought to issue or determined, the custody and support issue may be determined in an independent action in another court. . . . Of course, if the custody and support has been brought to issue or determined in the previously instituted action between the parents, there could be no final judgment in that case, because the issue of custody and support remains in fieri until the children have become emancipated." In re Holt, 1 N.C.App. 108, 160 S.E.2d 90 (1968); accord Wilson v. Wilson, 11 N.C. App. 397, 181 S.E.2d 190 (1971).

The pleadings in the divorce action which preceded In re Holt, supra, did not contain a prayer for custody or support. The pleadings in the divorce action which preceded Wilson v. Wilson, supra, did not disclose a prayer for custody or support. In contrast the pleadings in the divorce action (in Guilford County) which preceded this civil action for custody (in Randolph County) contained allegations and prayer for custody of the minor children.

In our opinion the allegations upon which custody can be granted and the prayer for custody in the divorce action brought the question of custody to issue even though the question was not determined in the divorce decree. In accordance with In re Holt, supra, and Wilson v. Wilson, supra, since the question of custody of the minor children was brought to issue in the divorce action in Guilford County (Nancy R. Kennedy v. John B. Kennedy, Guilford County No. 75CVD274), the District Court in Guilford County retained jurisdiction of the question of custody of the minor children of the parties. It follows that the District Court in Randolph County is without jurisdiction to entertain an independent action for custody of the minor children of the parties.

The order of the District Court, Randolph County, denying defendant's motion to dismiss is vacated, and this cause is remanded for entry of an order dismissing this action.

Vacated and remanded.

PARKER and HEDRICK, JJ., concur.