Allman v. Register , 233 N.C. 531 ( 1951 )

64 S.E.2d 861 (1951) 233 N.C. 531

ALLMAN
v.
REGISTER.

No. 526.

Supreme Court of North Carolina.

May 2, 1951.

Charles W. Bundy, Charlotte, for plaintiff.

Ray S. Farris and Hugh M. McAulay, Charlotte, for defendant.

DENNY, Justice.

The question of the fitness or unfitness of the plaintiff to have custody of her children was not an issue in the hearing below. The validity of the judgment, from which she appeals, depends on whether the children involved herein were domiciled in North Carolina at the time this proceeding was instituted. It must be conceded that unless the children were domiciled in this State at such time, the court below was without jurisdiction to award their custody, except in conformity with the decree theretofore entered in the Circuit Court of Henrico County, Virginia, Burns v. Shapley, 16 Ala.App. 297, 77 So. 447; Peacock v. Bradshaw, 145 Tex. 68, 194 S.W.2d 551; Conflict of Laws, by Beale, Vol. II, Sec. 144.3, p. 717.

Ordinarily the domicile of an unemancipated child, during its minority, follows that of the father. Thayer v. Thayer, 187 N.C. 573, 122 S.E. 307; In re Means, 176 N.C. 307, 97 S.E. 39; Yarborough v. Yarborough, 290 U.S. 202, 54 S. Ct. 181, 78 L. Ed. 269, 90 A.L.R. 924; 17 Am.Jur., Domicile, Sec. 57, p. 625; 28 C.J.S., Domicile, § 12, page 21. However, where parents are separated by judicial decree or divorce and the custody of a child is awarded to the mother, or where a father abandons the mother and child, the child's domicile follows that of the mother. 28 C.J.S., Domicile, § 12(2), page 21, et seq; 17 Am.Jur., Domicile, Sec. 59, p. 627; Restatement, Conflict of Laws, Sections 32 and 33, pp. 57 and 58; In re Means, supra; Wear v. Wear, 130 Kan. 205, 285 P. 606, 72 A.L.R. 425; Moss v. Ingram, 246 Ala. 214, 20 So. 2d 202; State ex rel. Rankin v. Peisen, 233 Iowa 865, 10 N.W.2d 645. And it should be kept in mind that a child may reside in one place and its domicile may be in another. Duke v. Johnston, 211 N.C. 171, 189 S.E. 504; Sheffield v. Walker, 231 N.C. 556, 58 S.E.2d 356.

It affirmatively appears from the record that the defendant abandoned his wife in 1945, and that the children have lived with their mother continuously since that time, except for the brief periods they have been permitted to visit their father, in Charlotte, North Carolina. Therefore, the domicile of these children would have been the same as that of their mother, even though the Virginia Court had not awarded her the custody of them. Restatement, Conflict of Laws, Section 33, p. 58.

Consequently, the purported finding of fact to the effect that these children were residents of North Carolina at the time of the institution of this proceeding, is but a conclusion of law and cannot be sustained on this record.

"An unemancipated infant, being non sui juris, cannot of his own volition select, acquire, or change his domicile." Thayer v. Thayer, supra [187 N.C. 573, 122 S.E. 308]; In re Reynolds, 206 N.C. 276, 173 S.E. 789; Duke v. Johnston, supra; In re Blalock, N.C., 64 S.E.2d 848; In re Webb's Adoption, 65 Ariz. 176, 177 P.2d 222.

There is no contention here that the plaintiff, who is the legal custodian of her children, under the Virginia decree, has become domiciled in North Carolina, as was the case in In re Alderman, 157 N.C. 507, 73 S.E. 126, 39 L.R.A.,N.S., 988, and Hardee v. Mitchell, 230 N.C. 40, 51 S.E.2d 884, decisions upon which the appellee is relying.

Moreover, it appears that the Virginia Court had jurisdiction over the parties to this proceeding, including the minor children involved, at the time the plaintiff's divorce decree was granted and she was awarded the full care and custody of her children. Therefore, so long as the plaintiff and her children are domiciled in that State, and the decree awarding her the custody of her children remains unmodified, such decree is binding on our courts under the full faith and credit clause of the Constitution of the United States. In re Biggers, 228 N.C. 743, 47 S.E.2d 32; McMillin v. McMillin, 114 Colo. 247, 158 P.2d 444, 160 A.L.R. 396; Cole v. Cole, 194 Miss. 292, 12 So. 2d 425; Parsley v. Parsley, 189 La. 584, 180 So. 417; Fraley v. Martin Tex. Civ.App., 168 S.W.2d 536; Ex Parte Mullins, 26 Wash.2d 419, 174 P.2d 790; 27 C.J.S., Divorce, § 329, page 1284. And the only forum in which the decree awarding custody of these children to the plaintiff may be amended or modified, is the court in which the decree was entered. Howland v. Stitzer, 231 N.C. 528, 58 S.E.2d 104.

In cases like this, our courts are open for the purpose of obtaining custody of children, in accordance with the general law or a valid and binding court decree of a sister state, where such state is the domicile of the children; and, likewise in order to obtain a judgment for any past due and unpaid installments due under such decree, for the support and maintenance of such children. Burns v. Shapley, supra; Bradley v. Bradley, 309 Ky. 28, 214 S.W.2d 1001; Hatrak v. Hatrak, 206 Miss. 239, 39 So. 2d 779; Conwell v. Conwell, 3 N.J. 266, 69 A.2d 712; Boyer v. Andrews, 143 Fla. 462, 196 So. 825. But our courts are neither authorized nor required, under the full faith and credit clause of our Federal Constitution in such cases, to render judgment for the payment of future installments for the support of such children in conformity with a decree of a sister state in which the cause has been retained for further orders of such court. The law in this respect is similar to that which applies to the payment of future installments of alimony under a decree of a sister state. Willard v. Rodman, 233 N.C. 198, 63 S.E.2d 106, and cited cases; Green v. Green, 239 Ala. 407, 195 So. 549.

The order awarding the custody of Nancy Ann Register and Thurman Burnett Register, Jr., to the defendant is set aside, and this cause is remanded for further proceedings in accord with this opinion.

Error and remanded.