In Re the Custody of Marlowe

150 S.E.2d 204 (1966) 268 N.C. 197

In the Matter of the Custody of Tonya Carol MARLOWE, four years of age, and Edgar Earl Marlowe III, three years of age.

No. 195.

Supreme Court of North Carolina.

September 28, 1966.

M. Roy Short, Jr., Dolley & Katzenstein, by Steve Dolley, Jr., Gastonia, for petitioner appellee.

Horn, West & Horn, by C. C. Horn, Shelby, Davis & White, by Jack H. White, Kings Mountain, Whitener & Mitchem, by Basil L. Whitener, by Wade W. Mitchem, Gastonia, for respondent appellant.

PLESS, Justice.

Judge Falls was correct in holding that the Florida decree of divorce was final, but the control and custody of minor children cannot be determined finally. Changed conditions will always justify inquiry by the courts in the interest and welfare of the children, and decrees may be entered as often as the facts justify. 27B C.J.S. Divorce § 317(1).

This case is quite similar to that of Richter v. Harmon, 243 N.C. 373, 90 S.E.2d 744, which was also a case involving the custody of a child then in North Carolina whose custody had been awarded to the mother by a Florida court. The child was brought to North Carolina and the father refused to surrender it to the mother, and a special proceeding was brought in Alamance County by the mother to obtain its custody. Among other things the Court said: "We hold that since the minor child had been a resident of North Carolina for almost a year prior to the institution of this proceeding (in this case it was some 5 months), coupled with the further fact that the petitioner, who had heretofore been given custody of the child by a court of competent jurisdiction in another State, came into this State and invoked the jurisdiction of our courts and instituted this proceeding, the court in which she instituted the proceeding does have jurisdiction of the child and may consider any change or circumstances that have arisen since the entry of the Florida decree on 13th October, 1953, and to determine what is for the best interest of the child and to award custody accordingly. But, in disposing of the custody of the minor child in controversy, the Florida decree awarding her custody to the petitioner is entitled to full faith and credit as to all matters existing when the decree was entered and which were or might have been adjudicated therein. It is said in 17 Am.Jur., Divorce and Separation, section 688, page 522: ``* * * where a decree of divorce fixing the custody of the children of the marriage is rendered in accordance with the laws of another state by a court of competent jurisdiction, such decree will be given full force and effect in other states as long as the circumstances attending the rendition of the decree remain the same. The decree has no controlling effect in another state as to the facts and conditions arising subsequent to its rendition.' In re Cameron's Guardianship, 66 Cal. App. 2d 884, 153 P.2d 385; Freund v. Burns, 131 Conn. 380, 40 A.2d 754; Boone v. Boone, 76 U.S. App.D.C. 399, 132 F.2d 14; Drake v. Drake, 187 Ga. 423, 1 S.E.2d 573; Kniepkamp v. Richards, 192 Ga. 509, 16 S.E.2d 24; Callahan v. Callahan, 296 Ky. 444, 177 S.W.2d 565; Cole v. Cole, 194 Miss. 292, 12 So. 2d 425; Hachez v. Hachez, 124 N.J.Eq. 442, 1 A.2d 845; In re Jiranek, 267 A.D. 607, 47 N.Y.S.2d 625; Miller v. Schneider, Tex.Civ.App.1943, 170 S.W.2d 301; Sheehy v. Sheehy, supra; Nelson on Divorce and Annulment, 2nd Ed., section 33.66, page 567 et seq.; Annotation 72 A.L.R. 442; 116 A.L.R. 1300; 160 A.L.R. 400.

"The courts of this State will not hesitate to award the custody of a minor child to a nonresident parent if it is found that it will be for the best interest of the minor child to do so. Griffith v. Griffith, 240 N.C. 271, 81 S.E.2d 918."

Following the above ruling the able writer of the opinion, Denny, J., later C. J., entered an order for the Court which is so appropriate here that it is used verbatim except for the change of names

The judgment entered below is set aside and this cause remanded for further hearing to the end that it may be determined whether or not conditions and circumstances have so changed since the entry of the Florida decree that it will be for the best interest of Tonya Carol Marlowe and Edgar Earl Marlowe to be placed in the custody of the respondent. If no change of condition is found to have occurred, justifying the change of custody, the petitioner will be entitled to an order in accord with the Florida decree.

Error and remanded.