Burrowes v. . Burrowes

Connor, J. The facts pertinent to the motion of the defendant in this action that the order in the judgment at the Second March Term, 1935, of the Superior Court of Wake County, with respect to the custody of Thomas Henry Burrowes, infant son of the plaintiff and defendant, be stricken from said judgment, as found by the judge at the hearing of said motion, are as follows: This action was begun in the Superior Court of Wake County, North Carolina, on 28 November, 1934. At that date the defendant was and she is now a nonresident of this State. She is a resident of the city of Washington, in the District of Columbia, where she and the plaintiff were married to each other on 12 September, 1923, and where they resided as husband and wife until some time during 1929, when the plaintiff became a resident of this State. At the date of the commencement of this action, the attorney for plaintiff, by letter addressed to her at the place of her residence in Washington, D. 0., advised the defendant of the commencement of the action against her by the plaintiff. He enclosed with his letter a copy of the complaint in the action, and advised her that the original complaint had been duly filed in the Superior Court of Wake County. The only reference in the complaint to Thomas Henry Burrowes, the infant son of the plaintiff and defendant, is the allegation that he was born on 6 May, 1924. No notice was given to the defendant in the complaint that the custody of her son was involved in the action. The prayer in the complaint was for judgment dissolving the bonds of matrimony existing between the plaintiff and defendant, and granting the plaintiff an absolute divorce from the defendant. There was also enclosed with the letter a copy of a judgment of non-suit, which the plaintiff had caused to be entered in an action for divorce instituted by the plaintiff against the defendant in the Superior Court of Wake County, on 26 October, 1933. In the complant in that action, the plaintiff had prayed for an order awarding him the custody of Thomas Henry Burrowes, and orders had been entered in the action, from time to time, with respect to the temporary custody of the said Thomas Henry Burrowes. The defendant was advised in said letter that summons in the action instituted against her by the plaintiff on 28 November, 1934, would be served by publication, as provided by statute, unless she accepted service of the summons. The summons in the action was subsequently served on the defendant by publication. *794 The defendant did not file an answer to tbe complaint nor did she enter an appearance in this action prior to Second March Term, 1935, of the Superior Court of Wake County, when the action was tried and judgment rendered granting the plaintiff an absolute divorce from the defendant, and containing an order awarding the custody of Thomas Henry Burrowes to the plaintiff. We concur with the opinion of Judge Barnhill that on these facts the order with respect to the custody of Thomas Henry Burrowes, infant son of the plaintiff and defendant, contained in the judgment rendered in this action at Second March Term, 1935, of the Superior Court of Wake County, was irregular and not in accordance with the practice of the courts of this State. We are further of the opinion that the order was improvidently made and included in the judgment, and should have been stricken from said judgment on the motion of the defendant, for the reason that the defendant had no notice from the complaint or otherwise that the custody of her infant son was involved in the action. It does not appear on the record or in the order that same was made upon the application or motion of the plaintiff. If such were the case, as may be reasonably inferred, the order was improvidently made, because no notice of five days, as required by the statute, O. S., 1664, was given to the defendant. It is manifest that the provision in the statute dispensing with the notice of five days, when it appears that the parent having possession or control of the infant child of the parties to the action has removed or is about to remove such child from the jurisdiction of the court, is not applicable to the instant case. This provision is applicable only where the application or motion is made by the parent who does not have possession or control of the child, and is for the protection of the rights of such parent, and not of the parent who has possession or control of the child at the time the application or motion is made. In such ease, no notice to the adverse party is required. If the order was made by the court, not on the application or motion of the plaintiff, but ex mero motu, still the order was improvidently made, for, in such case, conceding without deciding that the court had the power to make the order in this action with respect to the custody of the infant child of the plaintiff and defendant, after their divorce, for its protection, there is no finding by the court that the best interests of the said child would be promoted by committing its custody to its father rather than to its mother. Even in such case, notice should have been given to the defendant before an order was made in this action, affecting her rights with respect to the custody of her infant child. There is nothing in the record in this action which shows or tends to show that the defendant is not a proper person to have the custody of her child, or that she has by her conduct forfeited her rights as its *795 mother. Indeed, there is no contention on this appeal to that effect. Nor does it appear from the record that the order was made for the protection of the child, or to promote its best interests. There was error in the refusal of the court to allow defendant’s motion in the action, notwithstanding the motion of the plaintiff that the order improvidently made by the court at Second March Term, 1935, be ratified and affirmed by the court at Second March Term, 1936, of the court. As pertinent to the motion of the plaintiff, it was found by the court that at the time of the hearing of said motion, Thomas Henry Burrowes, infant son of the plaintiff and defendant, whose custody was involved in the said motion, was a student in a school in the State of Pennsylvania, where he had been placed by his father, the plaintiff. It thus appears that the said infant was not within the jurisdiction of the court at the time the order was made ratifying and affirming the order improvidently made by the court at its Second March Term, 1935, committing the custody of the said infant to the plaintiff. The effect of the order made at the Second March Term, 1936, was to commit the said infant to the custody of the plaintiff, as of the date of the order. As the child was not then within its jurisdiction, the court was without power to make the order, and for that reason there is error in the judgment in accordance with the order. 31 C. J., 988. See Finlay v. Finlay, 240 N. Y., 429, 40 A. L. R., 937, and In re Alderman, 157 N. C., 507, 73 S. E., 126. In the last cited ease it was held that an order made by a court in the State of Florida with respect to the custody of an infant child who had become a resident of this State, had no force or effect in this State. It is said in the opinion that when the child became a citizen and resident of this State, and duly domiciled here, it was no longer under the control of the Florida courts. In the instant case, it appears that neither the plaintiff nor the defendant, nor their child, Thomas Henry Burrowes, was a resident of or domiciled in this State at the time the order was made ratifying and affirming the order made in this action at Second March Term, 1935, committing the said Thomas Henry Burrowes to the custody of the plaintiff. The waiver by the court of the actual presence of the child at the hearing of plaintiff’s motion did not dispense with such presence for the purpose of acquiring jurisdiction of said child. Nor did the offer of counsel for the plaintiff to produce the child at the hearing supply the want of his presence within the jurisdiction of the court. For the reasons stated in this opinion, the judgment is reversed and the action remanded to the Superior Court of Wake County, that judgment may be entered in accordance with the decision of this Court. Beversed.