Kovacs v. Brewer

97 S.E.2d 96 (1957) 245 N.C. 630

Aida S. KOVACS
v.
George A. BREWER, Sr.

No. 168.

Supreme Court of North Carolina.

March 20, 1957.

Sylvester & Haimoff, New York City, Sanford, Phillips, McCoy & Weaver, Fayetteville, for petitioner.

Gay & Midyette, Eric Norfleet, Jackson, for respondent.

DENNY, Justice.

The appellant's first assignment of error is based on a single exception to the court's findings of fact numbered one through fifteen and does not point out wherein the findings of fact are not supported by the evidence. Therefore, the exception is broadside and this assignment of error presents nothing for review except whether or not the court's conclusions of law are supported by its findings. Winborne v. Stokes, 238 N.C. 414, 78 S.E.2d 171; Town of Burnsville v. Boone, 231 N.C. 577, 58 S.E.2d 351.

The second assignment of error is based on an exception to his Honor's conclusion of law to the effect "that this court, in passing upon the care, custody and control of Jane Elizabeth Brewer, is not bound by nor required to give effect to the decree of the Court of the State of New York made in 1954, * * *."

Irrespective of the failure of the appellant to challenge by proper exceptions the sufficiency of the evidence to support the court's findings in the hearing below, we are of the opinion that the findings are supported by competent evidence and that they support the court's conclusion of law challenged by the second assignment of error, and we so hold. Hoskins v. Currin, 242 N.C. 432, 88 S.E.2d 228.

The respondent, George A. Brewer, Sr., having been found to be a citizen and resident of North Carolina, domiciled in said State, to whom the custody of Jane Elizabeth Brewer, then 5½ years of age, was awarded, by the New York Court on 17 January 1951; and the said minor child having been a resident in the home of her grandfather, George A. Brewer, Sr., since September 1951; and her father, George A. Brewer, Jr., having been domiciled in North Carolina since immediately after January 1951, we hold, in the light of these findings, that the courts of North Carolina have the power and authority to hear and determine the question of the custody and welfare of the minor child involved herein. Richter v. Harmon, 243 N.C. 373, 90 S.E.2d 744; Hoskins v. Currin, supra; Gafford v. Phelps, 235 N.C. 218, 69 S.E.2d 313; In re Biggers, 228 N.C. 743, 47 S.E. 2d 32; In re Ogden, 211 N.C. 100, 189 S.E. 119; In re Alderman, 157 N.C. 507, 73 S.E. 126, 39 L.R.A.,N.S., 988.

We further hold that the modification of the 1951 decree made by the New York Court in 1954, has no extra-territorial effect, and we are not bound by the full faith and credit clause of the Constitution of the United States, Article IV, section 1, to recognize and enforce the modified decree. In re Alderman, supra; In re Biggers, supra; Hoskins v. Currin, supra.

An action which relates to the custody of a child is in the nature of an in rem proceeding. Therefore, the child is the res over which the court must have jurisdiction before it may enter a valid and enforceable order. Weddington v. Weddington, 243 N.C. 702, 92 S.E.2d 71; Richter v. Harmon, supra; Hoskins v. Currin, supra; Coble v. Coble, 229 N.C. 81, 47 S.E.2d 798.

The court below has found that the petitioner, Aida Kovacs, is not a fit and proper person to have the care, custody and control of the minor, Jane Elizabeth Brewer; on the other hand, it has found that George A. Brewer, Sr. is a man of excellent character, good habits and conduct and is a fit and suitable person to have the care and custody of said minor child. The welfare of the child in controversies involving custody is the polar star by which the courts must be guided in awarding custody. Smith v. Smith, 241 N.C. 307, 84 S.E.2d 891; Griffin v. Griffin, 237 N.C. 404, 75 S.E.2d 133; Gafford v. Phelps, supra; Walker v. Walker, 224 N.C. 751, 32 S.E.2d 318; Story v. Story, 221 N.C. 114, 19 S.E.2d 136.

The judgment of the court below is affirmed.

Affirmed.