Richter v. Harmon

90 S.E.2d 744 (1956) 243 N.C. 373

Roxanne Daniel RICHTER
v.
Carl M. HARMON, Jr.

No. 738.

Supreme Court of North Carolina.

January 13, 1956.

Carroll & Pickard, Burlington, for respondent appellant.

H. Clay Hemric, Burlington, for petitioner appellee.

DENNY, Justice.

If the petitioner were still a citizen and resident of the State of Florida the decree in that State awarding the custody of the minor child, Roxanne Adrienne Harmon, to her would be binding on our courts under the full faith and credit clause of the Constitution of the United States. Allman v. Register, 233 N.C. 531, 64 S.E.2d 861, 863; Sadler v. Sadler, 234 N.C. 49, 65 S.E.2d 345.

In the Allman case we said: "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 the instant case, however, the petitioner is no longer a resident of the State of Florida but a citizen and resident of the State of Maryland. The Florida court no longer has jurisdiction of the petitioner, the respondent, or of the minor child whose custody was awarded to the petitioner herein. Consequently, that court, under the circumstances, could make no modification of its custody decree that would have any extraterritorial effect, In re Alderman, 157 N.C. 507, 73 S.E. 126, 39 L.R.A.,N.S., 988, thereby preventing the courts of another State from making a new disposition of the child on a change of circumstances showing such course essential to the child's best interest. McMillin v. McMillin, 114 Colo. 247, 158 P.2d 444, 160 A.L.R. 396; Milner v. Gatlin, Tex. Com.App. 1924, 261 S.W. 1003; Goldsmith v. Salkey, 131 Tex. 139, 112 S.W.2d 165, 116 A.L.R. 1293; Sanders v. Sanders, 223 Mo.App. 834, 14 S.W.2d 458; Dorman v. Friendly, 146 Fla. 732, 1 So. 2d 734; 27 C.J.S., Divorce, § 329, p. 1284; 17 Am. Jur., Divorce and Separation, section 688, page 521; Annotation 4 A.L.R. 2d 85. The decree of divorce, however, is valid and the change of domicile did not divest such decree of the right to full faith and credit in a sister State. In re Biggers, 228 N.C. 743, 47 S.E.2d 32; State v. Williams, 224 N.C. 183, 29 S.E.2d 744; Williams v. State of North Carolina, 317 U.S. 287, 63 S. Ct. 207, 87 L. Ed. 279. Even so, the minor child has a rather unusual status at the present time. Her parents having been divorced, and her custody awarded to the mother, the petitioner, her domicile must be conceded to be that of her mother who is domiciled in the State of Maryland. Allman v. Register, supra. However, Roxanne Adrienne Harmon has never been in Maryland. Therefore, the courts of that State do not have and never have had any jurisdiction over her. Gafford v. Phelps, 235 N.C. 218, 69 S.E.2d 313; Sadler v. Sadler, supra; Coble v. Coble, 229 N.C. 81, 47 S.E.2d 798; Burrowes v. Burrowes, 210 N.C. 788, 188 S.E. 648. Domicile alone cannot confer jurisdiction over the person. Any action as it relates to the custody of a child is in the nature of an in rem proceeding, and the child must be present in the State and within the jurisdiction of a court of competent jurisdiction before such court may render a valid decree awarding its custody. Hoskins v. Currin, 242 N.C. 432, 88 S.E.2d 228; Coble v. Coble, supra; Burrowes v. Burrowes, supra.

The minor child in controversy in this proceeding has resided in the home of her father in this State since the latter part of May 1954. According to the petition filed herein, she was brought into this jurisdiction with the consent of the petitioner and at her suggestion. It is true, according to the finding of the court below, the petitioner intended that the child should live with the respondent only until such time as she secured employment and got located in the Washington-Baltimore area, at which time it was understood that the child would be returned to her. But the fact that the respondent failed to return the child to the petitioner makes it necessary for us to determine whether the presence of the child in this State since May 1954 is sufficient to give the courts of the State jurisdiction to determine the question of her custody in light of the allegations in the answer to the petition to the effect that the petitioner is not a fit or suitable person to have the custody of the child.

The petitioner bases her claim to custody solely on the Florida decree and insists that we must give full faith and credit to that decree. For the reasons heretofore stated, we do not concur in that view except as to the circumstances and conditions existing when the decree was entered. On the other hand, the respondent in his answer to the petition alleges that he went to Florida in May 1954 and got the minor child, Roxanne Adrienne Harmon, who had been abandoned and deserted by her mother; that he never, at any time, promised to return the child to the petitioner. He further alleges that by reason of the things set out in his answer that the "petitioner has fully and completely demonstrated the fact that she is incapable and incompetent and that she is not a fit, proper nor suitable person to have the care and custody of the minor child * *."

In 43 C.J.S., Infants, § 5, p. 52 et seq., it is said: "Jurisdiction to control, and determine and regulate the custody of, an infant is in the courts of the state where the infant legally resides, and the courts of another state are without power in the premises, and cannot obtain jurisdiction for such purpose over persons temporarily within the state. However, if the child is actually within the jurisdiction of the court, the court may determine claims as to his custody, although his legal domicile is elsewhere, and regardless of the domicile of its parents * * *."

In the case of Finlay v. Finlay, 240 N.Y. 429, 148 N.E. 624, 625, 40 A.L.R. 937, Cardozo, J., in speaking for the Court, said: "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. Woodworth v. Spring, 4 Allen, Mass., 321, 323; White v. White, 77 N.H. 26, 86 A. 353; Hanrahan v. Sears, 72 N.H. 71, 72, 54 A. 702; In re Hubbard, 82 N.Y. 90, 93. For this, the residence of the child suffices, though the domicile be elsewhere." Bragassa v. Bragassa, 197 Ga. 140, 28 S.E.2d 133; People ex rel. Noonan v. Wingate, 376 Ill. 244, 33 N.E.2d 467; Wear v. Wear, 130 Kan. 205, 285 P. 606, 72 A.L.R. 425; Sheehy v. Sheehy, 88 N.H. 223, 186 A. 1, 107 A.L.R. 635; Wicks v. Cox, 146 Tex. 498, 208 S.W.2d 876, 4 A.L.R. 2d 1; Annotation 4 A.L.R.2d, section 24, page 41; 27 Am.Jur., Infants, section 105, page 827.

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, 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.

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 Roxanne Adrienne Harmon to be placed in the custody of the respondent. If no change or 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.

In view of the conclusion we have reached, the parties to this proceeding may desire to recast their pleadings, and they will be permitted to do so if so advised.

Error and remanded.