Holmes v. Sanders

97 S.E.2d 683 (1957) 246 N.C. 200

Seaborne HOLMES
v.
Bannie SANDERS and Martha Sanders.

No. 532.

Supreme Court of North Carolina.

May 1, 1957.

R. O. Everett, Robinson O. Everett and Kathrine R. Everett, Durham, for plaintiff, appellant.

Wellons & Wellons, Smithfield, for defendants, appellees.

PER CURIAM.

There is plenary competent evidence to support Judge Bickett's findings of fact, and his findings of fact support his judgment. The findings of fact by Judge Williams and Judge Bickett clearly show there are substantial reasons to deprive petitioner of the custody of his child. Judge Bickett's judgment is in accord with our decisions that the child's welfare is the paramount consideration, and that a parent's love must yield to another if, after judicial investigation, it is found that the best interest of the child is subserved thereby. James v. Pretlow, 242 N.C. 102, 86 S.E.2d 759; Finley v. Sapp, 238 N.C. 114, 76 S.E.2d 350; Atkinson v. Downing, 175 N.C. 244, 95 S.E. 487.

Petitioner contends Ransome Solomon Holmes' domicile is in Washington, D. C., and the court below lacked jurisdiction. The child has been living with his maternal grandparents in Johnston County, North Carolina, since the day before Thanksgiving 1954. Petitioner came into this State, and invoked the jurisdiction of our courts. The answer to petitioner's contention is given by Cardozo, J., speaking for the Court in Finlay v. Finlay, 240 N.Y. 429, 148 N.E. 624, 625, 40 A.L.R. 937, quoted with approval and followed by this Court in Richter v. Harmon, 243 N.C. 373, 90 S.E.2d 744, 748: "The jurisdiction of a state to regulate the custody of infants found within its territory does not depend upon the domicile of the parents. It has its origin in the protection that is due to the incompetent or helpless. [Citing authorities.] For this, the residence of the child suffices, though the domicile be elsewhere."

All of petitioner's assignments of error are overruled.

The judgment entered by Judge Bickett is

Affirmed.