In Re the Custody of Orr , 254 N.C. 723 ( 1961 )

119 S.E.2d 880 (1961) 254 N.C. 723

In the Matter of the Custody of Amy Elizabeth ORR, Eric James Orr, and William Earl Orr, Minor Children of Mrs. Barbara Orr, Petitioner, and William Orr, Respondent.

No. 594.

Supreme Court of North Carolina.

May 24, 1961.

Wharton, Ivey & Wharton, Greensboro, for petitioner appellee.

J. F. Motsinger, Winston-Salem, for respondent appellant.

RODMAN, Justice.

Respondent assigns three errors, namely: (1) the refusal of the court to dismiss the action in accordance with his motion made on his special appearance; (2) the refusal of the court to continue the hearing and make further investigation with respect to the fitness of petitioner and respondent to have custody of the children; (3) signing the judgment awarding custody of the children to petitioner.

Respondent does not challenge by exception any of the findings of fact made by the court. Findings of fact made in the custody proceeding, when supported by competent evidence, are conclusive on appeal. In re Gibbons, 245 N.C. 24, 95 S.E.2d 85. Findings cannot be challenged because not supported by competent evidence by a mere exception to the judgment. The exception must be directed to the specific finding which the complaining party contends is not supported by competent evidence. McCreary Tire & Rubber Co. v. Crawford, 253 N.C. 100, 116 S.E.2d 491; Jarvis v. Souther, 251 N.C. 170, 110 S.E.2d 867; Columbus County v. Thompson, 249 N.C. 607, 107 S.E.2d 302; In re Sams, 236 N.C. 228, 72 S.E.2d 421.

Notwithstanding our procedural rules noted above, we have, because of the challenge to the jurisdiction of the court and the propriety of exercising such jurisdiction, examined the evidence on which Judge Preyer made his findings.

Petitioner is explicit in her statement that she considered making her home in North Carolina as early as July 1960. She and the children visited Dr. Greenfield, an assistant professor of sociology at Woman's College, and his wife on the way from Florida to Indiana on a visit to petitioner's parents. Petitioner informed her friends, the Greenfields, of her plans. Upon completion of the visit to her parents, she returned to Greensboro and early in August 1960 definitely decided to make that her home. She secured employment there and secured a place where she and the children made their home. Her testimony relating to the establishment of her residence and domicile in Greensboro in supported by the affidavits of Dr. and Mrs. Greenfield.

That the children were living with petitioner when she asked the court to take jurisdiction is conceded. Their presence in North Carolina was not casual and temporary. There were both abode and intent to make Greensboro a permanent home. That sufficed to vest the court with jurisdiction. Richter v. Harmon, 243 N.C. 373, 90 S.E.2d 744; Hoskins v. Currin, 242 N.C. 432, 88 S.E.2d 228; Gafford v. Phelps, 235 N.C. 218, 69 S.E.2d 313; Finlay v. Finlay, 240 N.Y. 429, 148 N.E. 624, 40 A.L.R. 937; Rogers v. Commonwealth, 176 Va. 355, 11 S.E.2d 584.

The Supreme Court of Florida has declared the law in this language: "The law is and has been from time immemorial that each state is not only empowered, but is charged with the duty, to regulate the custody of infants within its borders. This is true even though the parents may be residents of another state. (Citations.) For this, the residence of the child suffices, though the domicile be elsewhere." Di Giorgio v. Di Giorgio, 153 Fla. 24, 13 So.2d 596, 597. The Superior Court of Guilford County had jurisdiction to pass on the question of custody, and the facts warranted the exercise of its jurisdiction.

Personal service of the writ on respondent in Guilford County is established by the officer's return and is not challenged by respondent. This gave the court the right to enter an in personam judgment against respondent, enforceable by appropriate process whenever he might be found within the jurisdiction of the court.

The court's power to act and award custody of the oldest child cannot be doubted.

The finding that respondent, in disregard of Judge Gwyn's order, had, by force, removed the two youngest children from petitioner's custody and taken them out of the State is established by the affidavit of respondent's brother, an accomplice in the attempt to thwart the jurisdiction of the court and contemptuously disregard its lawful orders. This affidavit was part of respondent's evidence. The brother was, by his admission, charged and convicted of a criminal assault for his part in forcibly taking the children from the custody of petitioner.

Respondent contends his flagrant violation of the lawful order of the court not to remove the children from its jurisdiction deprived the court of the right to hear and determine what would best promote the welfare of those children. The contention is wanting in merit. The right to hear and decide came into being the instant the writ was served on respondent. He could not thereafter deprive the court of the jurisdiction so acquired. Kinross-Wright v. Kinross-Wright, 248 N.C. 1, 102 S.E.2d 469; Maloney v. Maloney, Cal.App., 154 P.2d 426; Vaughan v. Vaughan, 267 Ala. 117, 100 So.2d 1; Brown v. Cook, Utah, 260 P.2d 544; Onderdonk v. Onderdonk, 3 Wis.2d 279, 88 N.W.2d 323; Clemens v. Kinsley, 72 Idaho 251, 239 P.2d 266; Barnes v. Rogers, 206 Miss. 887, 41 So.2d 58; Boardman v. Boardman, 135 Conn. 124, 62 A.2d 521, 13 A.L.R.2d 295; Miller v. Miller, 153 Neb. 890, 46 N.W.2d 618; Griffin v. Harmon, 35 Ga.App. 40, 132 S.E. 108; 21 C.J.S. Courts § 93, p. 144.

The court correctly declined to dismiss the action on respondent's special appearance and motion based on the assertion that the court did not have jurisdiction.

Without objection the matters in controversy were heard on affidavits. Respondent submitted for the court's consideration his own affidavit, the affidavit of his brother, his mother, and another in support of his claims. Petitioner likewise submitted affidavits. There is nothing to indicate that respondent was deprived of adequate opportunity of presenting any evidence which he might wish to offer. The evidence presented to the court was adequate for it to determine the question of jurisdiction and what was for the best interest of the parties. Notwithstanding the assertion that the refusal of the court to continue was arbitrary, we find nothing to support the assertion. The error assigned in refusing to continue is without merit.

For practical purposes the only fact in controversy was: Will the welfare of the children be best served by awarding custody to petitioner or respondent? Each of the parents asserted the unfitness and inability of the other to properly care for the minors. The court, on ample evidence, resolved this question of fact in favor of petitioner.

Finally, respondent inquires how the decree, insofar as it relates to the two youngest children, can be enforced. A sufficient answer is: That question is not now before us.

If it be that respondent is beyond the jurisdiction and hence the power of this Court to enforce orders lawfully made, courts do exist where respondent resides with adequate power to compel respect and obedience to lawful orders of a court having jurisdiction of the parties and subject matter.

We find

No error.