88 S.E.2d 228 | N.C. | 1955
Joan HIbbs HOSKINS
v.
Lucius A. CURRIN, Jr. and wife, Pauline Currin, and Ralph Hicks Currin.
Supreme Court of North Carolina.
*232 Wright T. Dixon, Jr., Raleigh, for plaintiff.
Royster & Royster, Oxford, for defendants and intervenor.
DENNY, Justice.
The appellant challenges the validity of the judgment entered below on the ground that the courts of North Carolina are 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 of the California court. Therefore, she takes the position that the court below was bound by the findings of the California court with respect to her present fitness to have the care and custody of Rodney Alan Currin, and that it was error to admit any evidence to establish facts contrary to those found by the California court in the modified decree. We do not concur in this view.
The decisions in this country are well-nigh hopelessly in conflict with respect to the extraterritorial effect that should be given to judgments awarding the custody of children. 9 A.L.R.2d AnnotationCustody AwardChild Outside of State, page 434; 4 A.L.R.2d Annotation Custody of ChildJurisdiction, page 25; 27 C.J.S., Divorce, § 333 c, page 1299. However, the decisions in this jurisdiction are to the effect that regardless of what the court of a sister State may decree with respect to custody, if the child involved in such decree becomes a resident of this State, our courts are not without authority to hear and determine questions of custody and welfare when properly raised. 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 DeFord, 226 N.C. 189, 37 S.E.2d 516; In re Ogden, 211 N.C. 100, 189 S.E. 119; Burrowes v. Burrowes, 210 N.C. 788, 188 S.E. 648; In re Alderman, 157 N.C. 507, 73 S.E. 126, 39 L.R.A.,N.S., 988. See also Elliott v. Elliott, 181 Ga. 545, 182 S.E. 845; Boardman v. Boardman, 135 Conn. 124, 62 A.2d 521, 13 A.L.R. 2d 295; Gilman v. Morgan, 158 Fla. 605, 29 So. 2d 372; Boor v. Boor, 241 Iowa 973, 43 N.W.2d 155. Cf. In re Application of Reed, 152 Neb. 819, 43 N.W.2d 161; Byers v. Superior Court, 61 Ariz. 284, 148 P.2d 999 and Dawson v. Dawson, Mo.App., 241 S.W.2d 725.
In light of the finding of the court below that North Carolina is the legal domicile of the intervenor who has had the legal custody of Rodney Alan Currin since 16th March, 1953; and the further fact that he has been in the physical custody of the defendants in Granville County, North Carolina, since the 2nd day of March, 1952, which antedates the institution of the California action, we hold the California decree is not binding on the courts of this State.
An action which relates to the custody of a child is in the nature of an in rem proceedings. Therefore, the child is the res over which the court must have jurisdiction before it may enter a valid and enforceable order. Coble v. Coble, 229 N.C. 81, 47 S.E.2d 798. Cf. McRary v. McRary, 228 N.C. 714, 47 S.E.2d 27.
We have carefully examined all of the pertinent findings of fact by the court below and they are supported by competent evidence. Hence, the order of custody from which the plaintiff appeals is in all respects affirmed.
Affirmed.
