In Re Biggers

DbviN, J. This is another of those unfortunate cases of the children of divorced parents. The petitioner, Mrs. Annie Bost Biggers, now Mrs. Bennick, having entered an appearance and filed answer in the suit instituted by her former husband, J. L. Biggers, in the State of Florida, she is bound by the judgment duly entered in that court in so far as it dissolved the marriage ties. Under the full faith and credit clause of the Constitution of the United States, Art. IV, sec. 1, the Florida divorce decree is valid here. S. v. Williams, 224 N. C., 183, 29 S. E. (2d), 744; McRary v. McRary, ante, 714; Williams v. North Carolina, 317 U. S., 287. But it does not necessarily follow as a corollary therefrom that the decree of the Florida court awarding the custody of the children to J. L. Biggers is binding upon the courts of North Carolina. That decree, in so far as it operates upon the children, has no extra-territorial effect. In re Alderman, 157 N. C., 507, 73 S. E., 126. So that, if these children were at the time of the decree, or have since become and were at the time of the hearing below, residents of North Carolina and within the jurisdiction of the court in which relief on their behalf was sought, the Superior Court of Cabarrus County was not without authority or power to hear and determine questions as to their custody and welfare when properly raised. In re Alderman, supra; Burrowes v. Burrowes, 210 N. C., *745 788, 188 S. E., 648; In re Ogden, 211 N. C., 100, 189 S. E., 119; In re Prevatt, 223 N. C., 833, 28 S. E. (2d), 564; In re Morris, 225 N. C., 48 (51), 33 S. E. (2d), 243; In re DeFord, 226 N. C., 189, 37 S. E. (2d), 516. If, on the other hand, the children were and are residents of Florida, the court of that state as incident to its jurisdiction to grant divorce had power to make provision for the care and custody of the children of the marriage it dissolved. In re Ogden, supra. However, in the record no definite evidence, allegation or finding appears to guide the Court to a correct determination of the questions raised, in accord with the principles announced in the decided cases, and the cause is remanded to the .Superior Court of Cabarrus County for additional findings and appropriate orders based thereon. The dismissal of the petitioner’s petition by Judge Alley in April, 1947, for want of service of notice would not constitute a final determination of the matter, or alone prevent the court, upon showing of materially changed conditions, from reconsidering the order entered in 1944. Clegg v. Clegg, 187 N. C., 730, 122 S. E., 756; In re TenHoopen, 202 N. C., 223 (227), 162 S. E., 619. Remanded.