Romano v. Romano ( 1966 )

146 S.E.2d 821 (1966) 266 N.C. 551

Vincent Louis ROMANO
v.
Joan Marie ROMANO.

No. 523.

Supreme Court of North Carolina.

March 2, 1966.

Yarborough, Blanchard, Tucker & Yarborough, Raleigh, for plaintiff appellant.

Tharrington & Smith, by J. Harold Tharrington, Raleigh, for defendant appellee.

HIGGINS, Justice.

Both parties to this action were before the court for all purposes involved in the divorce proceeding. The plaintiff, a resident of this State, instituted the action against the defendant, a resident of Pennsylvania. The defendant appeared before the court in person by attorney and by filing an answer and cross action for alimony, counsel fees, and the custody of the child. The defendant admitted she had the custody of the infant in Pennsylvania; and that he had never been in the State of North Carolina.

By this appeal the plaintiff challenges the order of the Superior Court only insofar as it awards custody of the child to the defendant and orders that the plaintiff pay into court an allowance to the mother for the child's support. The sole ground of the challenge is the absence of the child from the jurisdiction of the court. The plaintiff argues here that custody is an in rem proceeding over which the Superior Court cannot exercise jurisdiction in the absence of the child, citing as authority Cushing v. Cushing, 263 N.C. 181, 139 S.E.2d 217; Kovacs v. Brewer, 245 N.C. 630, 97 S.E.2d 96; Richter v. Harmon, 243 N.C. 373, 90 S.E.2d 744; Gafford v. Phelps, 235 N.C. 218, 69 S.E.2d 313.

Many cases in our reports state the general rule that in a custody proceeding the child should be before the court before any custodial order can be entered "affecting the person of the infant." This rule is based on the reasoning that the court otherwise could not enforce its decree. The reason for the rule has engendered this exception to it: "If both parties are in court and subject to its jurisdiction, an order may be entered, in proper instances, binding the parties and enforceable through its coercive jurisdiction." Weddington v. Weddington, 243 N.C. 702, 92 S.E.2d 71; Coble v. Coble, 229 N.C. 81, 47 S.E.2d 798.

In this case the father alleged the infant was in the custody of the mother in Pennsylvania. He does not ask the court to disturb that custody. Both parties being before the court and subject to its in personam judgments, Judge Copeland's order that the plaintiff pay an allowance to the wife for the support of the infant may be enforced against the offending party, notwithstanding the fact "the person of the infant" is not bound because of his absence from the jurisdiction. Though the infant is not bound, the parties to the action are bound. Insofar as the decree affects the "person of the infant" to his prejudice, only someone authorized to speak or act for him may complain. The effect of the decree beyond the jurisdiction of this Court, therefore, is without significance. Cushing v. Cushing, supra.

When the parties are before the court in a divorce proceeding "``in which a complaint has been filed, * * * authority to provide for the custody of children of the marriage vests in the court in which the divorce proceeding is pending. (Cases cited.) Jurisdiction rests in this court so long as the action is pending and it is pending for this purpose until the death of one of the parties', or the youngest child born of the marriage reaches the age of maturity, whichever event shall first occur." Weddington v. Weddington, supra.

The rationale of the rule seems to be that when both parties to a marriage are before the court in a divorce proceeding, the court may adjudicate their respective rights, duties, and obligations involved in the custody of their children, even though the children are not actually before the court. The court enforces its decrees by dealing with the offending parent since, because of its absence, the court cannot deal "with the person of the infant." Judge Copeland has ordered the father to pay into court money to feed the baby. Its needs and the father's liability to supply them are essentially the same whether the little tot is in his grandmother's lap in Philadelphia or in his mother's lap in Raleigh.

The order entered by Judge Copeland is interlocutory and may be enforced by the court's coercive power while the cause is pending before the court. The court recognizes the parties have alleged the mother has the custody. The court, by its order, recognizes that custody and provides an allowance to the custodian. Sadler v. Sadler, 234 N.C. 49, 65 S.E.2d 345. The interlocutory order entered in this cause is supported by the findings of fact made by the court and the order pursuant thereto is

Affirmed.

MOORE, J., not sitting.