Bonavia v. Torreso

BRITT, J.

In passing upon a demurrer, the court is confined to a consideration of the pleading and the legal instruments incorporated therein and may not consider any fact not appearing therein. 6 Strong, N.C. Index 2d, Pleadings, § 19, pp. 327, 328. A demurrer admits, for the purpose of testing the sufficiency of the pleading, the truth of factual averments well stated. McLeod v. McLeod, 266 N.C. 144, 146 S.E. 2d 65.

Defendants contend first that the District Court of Dare County does not have jurisdiction of the subject matter of this litigation for that it appears upon the face of the complaint that the minor child, Lisa, is a resident of Connecticut. This contention has no merit. In the first place, it does not appear upon the face of the complaint that Lisa is a resident of Connecticut. Furthermore, G.S. 50-13.5 (a) and (b) clearly provide that except in certain cases a civil action is proper procedure to determine custody of a minor child, and G.S. 50-13.5 (c) (2) (a) provides that the courts of this State shall have jurisdiction to enter orders providing for the custody of a minor child when “[t]he minor child resides, has his domicile, or is physically present in this State.” See Rothman v. Rothman, 6 N.C. App. 401. G.S. 7A-244 provides that the district court division is the proper division of the General Court of Justice for the trial of civil actions and proceedings for child custody. The complaint alleges that Lisa came from Connecticut to North Carolina in August 1968 and has resided and attended school in North Carolina since that time. The complaint was not demurrable for lack of jurisdiction.

In paragraphs numbered II, III and IV, defendants contend that the complaint reveals that plaintiff is claiming custody of an adopted child and that plaintiff seeks to attack or set aside an adoption judgment entitled to full faith and credit under Article 4, Section 1 of the United States Constitution. This contention is without merit. In paragraph V of the complaint set forth above, plaintiff alleges the circumstances under which she signed a purported consent to adoption, but it does not appear upon the face of the complaint that an adoption proceeding was ever completed, in this or any other state; in fact, it does not appear that an adoption proceeding was ever instituted.

In McDowell v. Blythe Brothers Co., 236 N.C. 396, 72 S.E. 2d 860, in an opinion by Ervin, J., it is said:

“* * * The only office of a demurrer is to test the legal sufficiency of the facts stated in the pleading of an adversary. In consequence, it is not permissible for a demurrant to incorporate in his demurrer facts not shown by the pleading challenged by the demurrer. Where a demurrer to a complaint invokes the aid of a supposed fact which does not appear in the complaint, it is a 'speaking demurrer/ and offends both the common law and code systems of pleading. The court will not consider the supposed fact introduced by the 'speaking demurrer’ in passing on the legal sufficiency of the facts alleged in the complaint. (Citing numerous authorities)”

The demurrer under consideration is a “speaking demurrer,” for it invokes the aid of supposed facts which do not appear in the complaint. When these supposed'facts are disregarded and recourse is had to the complaint itself, we hold that plaintiff alleged sufficient facts to invoke the jurisdiction of the District Court of Dare County to pass upon the question of Lisa’s custody. Of course, we do not presume to foresee the allegations defendants will plead in their answer. . -

The judgment sustaining the demurrer is

Reversed.

BeocK and VatjghN, JJ., concur.