In Re Deford

BarNhill, J. When the court below directed that the infant, James Lyman DeFord, remain in the custody of Mrs. Cynthia DeFord Adams, its paternal aunt, as the agent of its father, the respondent Lyman DeFord, it in effect awarded custody to the father, subject to the pro *192 vision that the child must be eared for in the home of Mrs. Adams. This part of the order entered is in accord with the decisions of this Court. Newsome v. Bunch, 144 N. C., 15; In re Jones, 153 N. C., 312, 69 S. E., 217; Latham v. Ellis, 116 N. C., 30; In re Lewis, 88 N. C., 31; In re Turner, 151 N. C., 474, 66 S. E., 431; In re Fain, 172 N. C., 790, 90 S. E., 928; In re TenHoopen, 202 N. C., 223, 162 S. E., 619; Patrick v. Bryan, 202 N. C., 62, 162 S. E., 207. The court below, however, after awarding custody to the father, imposed a condition which permits the petitioner to take the child to her home in Texas, or wherever else she may then be residing, and to keep him during the summer and imposed upon the father the duty and expense of going for and returning it to North Carolina each year just prior to the fall session of school. It is to this part of the order the appellants except. The exception is well founded and must be sustained. The final judgment or decree is the end for which jurisdiction is exercised and it is only through the judgment and its execution that the power of the court is made efficacious and its jurisdiction complete. 21 C. J. S., 35 (sec. 21). “The existence of this power of a court over its judgments and processes is absolutely necessary in order to prevent the abuse of process and the oppression of suitors. . . .” 14 Am. Jur., 374. I Therefore a court will not adjudicate where it cannot enforce the adjudication, or turn its suitors over to another tribunal to obtain justice, or vest the losing litigant with the power to defeat the jurisdiction of the court and thus nullify the relief granted the successful suitor, or enter a decree by the very terms of which it will be divested of jurisdiction and left powerless to compel obedience. Central National Bank v. Stevens, 169 U. S., 432, 42 L. Ed., 807; Knox Co. v. Aspinwall, 24 How., 376, 16 L. Ed., 735; Bankers’ Trust Co. v. Greims, 147 Atl., 290 (Conn.), 66 A. L. R., 726; 14 Am. Jur., 379. Hence, in a proceeding of this nature, in the absence of unusual circumstances, a court should not enter an order which permits the infant to be removed from the State by one to whom unqualified custody has not been awarded. Harris v. Harris, 115 N. C., 587; In re Turner, 151 N. C., 474, 66 S. E., 431; Page v. Page, 166 N. C., 90, 81 S. E., 1060; Page v. Page, 167 N. C., 350, 83 S. E., 627; Walker v. Walker, 224 N. C., 751. It is axiomatic that courts have no extraterritorial jurisdiction. 21 C. J. S., 141. It follows that so soon as the petitioner, under the permission granted in the order entered in the court below, takes the child to the State of Texas, the power of the courts of this State to exercise further control over the infant would be ousted. The courts of Texas would acquire jurisdiction and the decree awarding custody to respond *193 ents would be rendered wholly ineffectual. In re Alderman, 157 N. C., 507, 73 S. E., 126; Wilson v. Elliott, 96 Tex., 472. “It does not appear that the mother ... is in anywise more suitable than the father. The father is domiciled in this State; the mother is a nonresident. Under these circumstances, unless more shall appear, the custody should remain with the father. The Court certainly would not, upon these facts, award the custody to a person out of the State. To award the custody alternately to the father and the nonresident mother would be to place the child out of the jurisdiction of the Court, so that it would be impossible to enforce so much of the decree as directs the return of the child to the father after the specified time. . . . The Court, under special circumstances, may allow an infant ward to go out of its jurisdiction but it will not abdicate its functions. . . .” Harris v. Harris, supra. The rule that the removal from .the State of a child whose custody is at issue will not be permitted is not an absolute or arbitrary principle and may be departed from when it is clearly manifested that the welfare of the child requires it. The petitioner relies upon In re Means, 176 N. C., 307, 97 S. E., 39, which fairly represents a line of decisions to this effect. But nothing there said is out of harmony with our conclusion here. There the matrimonial domicile was in Rhode Island. The father, having separated from his wife, surreptitiously took the child and brought it to North Carolina. The mother instituted a proceeding here to obtain custody. It was found as a fact that she was a fit person to have custody of the infant and could offer it many of the advantages of life in a modern home surrounded by the conveniences and comforts of life, and that the father, a fugitive from justice, was not a suitable custodian. Under these unusual circumstances custody was awarded to the petitioner. In so doing the court fully executed its judgment. So much of the judgment below as permits the mother to take the infant out of the State must be stricken. In lieu thereof the court, in its discretion, may make provision for the mother to visit her child under conditions similar to those imposed by the judge of the juvenile-court. Modified and affirmed.