In Re Blake
114 S.E. 300
N.C.
1922
Check Treatment
Waleier, J.

This is a petition for a writ of habeas corpus to deter mine tbe custody of a child eight years of age, heard by his Honor, W. M. Bond, at December Term, 1921, of Wake Superior Court. The petition was filed by Mrs. Christine Muse, mother of the child, Natalie Blake, against Hubert M. Blake, the child’s father.

The court rendered judgment awarding the custody of the child to the mother, and directing the payment of $15 per month by the fathef to the mother to be applied to the child’s support. The respondent excepted to this order, and appealed. The order is set out in full' in the record. • ■

*280 • The court finds, among other facts, that on 28 April, 1919, the petitioner was granted an absolute divorce from the respondent, Hubert M. Blake, in the Superior Court of Mecklenburg County, North Carolina, and that no order has ever been made in said action for the custody of the child, Natalie Blake.

The exceptions to the order entered in this cause are based upon the following grounds:

1. "Want of jurisdiction to determine the custody of the child.

' 2. Want of power to order respondent to contribute to the support of the child.

By C. S., 1664, it is provided that, “After the filing of a complaint in any action for divorce, whether from the bonds of matrimony or from bed and board, both before and after final judgment therein, it is lawful for the judge of the court in which such application is or was pending to make such orders respecting the care, custody, tuition, and maintenance of the minor children of the marriage as may be proper, and from time to time modify or vacate such orders, and may commit their custody and tuition to the father or mother, as may be thought best; or the court may commit the custody and tuition of such infant children, in the first place, to one parent for a limited time, and after the expiration of that time, then to the other parent, and so alternately: Provided, that no order respecting the children shall be made on the application of either party without five days notice to the other party, unless it shall appear that the party having the possession or control of such children has removed or is about to remove the children, or himself, beyond the jurisdiction of the court.” See Howell v. Howell, 162 N. C., 287. Except as between parents, the right of custody of a child cannot be determined by writ of habeas corpus. C. S., 2241; In re Parker, 144 N. C., 170. And it is- essential that the parents must be living in a state of separation “without being divorced” before the court has power in a habeas corpus proceeding to determine the custody of a child. Such power is based upon C. S., 2241, which provides: “When a contest shall arise on a writ of habeas corpus between any husband and wife, who are living in a state of separation, without being divorced, in respect to the custody of their children, the court or judge, on the return of such writ, may award the charge or custody of the child or children so brought before it either to the husband or to the wife, for such time, under such regulations and restrictions, and with such provisions and directions as will, in the opinion of such court or judge, best promote the interest and welfare of the children. At any time after the making of such orders tiie court or judge may, on good cause shown, annul, vary, or modify the same.” (Italics ours.)

*281 When tbis statute is considered in connection with O. S., 1664, quoted supra, it becomes apparent the Legislature intended that the custody of ■children, where there had been a divorce of the parents, shall be determined by the court in which the divorce is granted, and, where there is no divorce, by proceedings in habeas corpus. Jurisdiction of the court in which a divorce is granted to award the custody of a child is exclusive ■and continuing. In re Krauthoff (Mo.), 177 S. W., at p. 1118. The Court held in the case of In re Morgan, 21 S. W. (Mo.), 1122, construing a divorce statute similar to ours, that pending a suit for divorce in a court having jurisdiction of the parties and subject-matter, another •court will not interfere by writ of habeas corpus with either party’s possession of their children, “notwithstanding Eev. Stat., sec. 5415, which provides that in all proceedings on habeas corpus between husband and wife, for the custody of their children, the court may award the ■custody to the complainant or other guardian as shall be deemed best.”

Under our statute, C. S., 1664, a divorce suit is pending for the purpose of an order as to the custody of children after as well as before ■final judgment. This statute expressly vests in the divorce court the power to award the custody of children, and from time to time to modify ■or vacate its orders, and the necessary implication is that this jurisdiction is exclusive. It is said in Corpus Juris, p. 341, that “this jurisdiction continues during the state of minority, and is subject to be invoked at any time within that period, and will not be interfered with by process issuing out of other courts.” In Page v. Pope, 166 N. C., 90, an action for divorce from bed and board was pending between the parents of an infant child and a dispute arose as to the custody of the child. The mother filed a petition for a writ of habeas corpus. In holding that the remedy was by motion in the divorce cause, the Chief Justice said : “Indeed, if for any reason the plaintiff had been entitled to an order for the custody of the child, pending the appeal, and had been living in this State, she should have proceeded by a motion in the cause before the ■court below, and a writ of habeas corpus did not properly lie in any •event.” It was suggested on the argument, and it may be with some show of reason, that if jurisdiction to pass upon the custody of the child is not exclusively in the court in which the divorce decree was granted, it would appear to reside in the juvenile court under the provisions of <L S., 5039 et seq., the appellant relying strongly on In re Hamilton, 182 N. 0., 44.

In general, the only object of a writ of habeas corpus is to set at large the person illegally restrained of his liberty. But in the case of a child, the court is permitted to go further and fix the custody of the child. We do not find that the power of the court has ever been held to extend beyond this limit, and to give other relief for its advancement and bene *282 fit (In re Samuel Parker, 144 N. C., 170; 12 Ruling Case Law, p. 1253), and its special powers with respect to controversies relating to children, their custody, support, etc., comes to it from statutory provisions, for, as was well and wisely said by Justice Hoke, in the case of In re Samuel' Parker, supra, at p. 175, in his opinion (the writer of this opinion-having concurred therein): “Section 1853, Revisal, was enacted to-enable the court to make proper regulations as to the care and custody of children as between husband and wife who are living in a state of separation without being divorced. It seems to be confined to such; cases, and has, to my apprehension, no perceptible bearing on the ease-before us.”

While we therefore arrive at the conclusion that the judge below had' no jurisdiction or power to proceed in this matter, but that the jurisdiction belonged solely to the Superior Court of Mecklenburg, where the-parents were divorced, by force of the express provisions of the statute,, we must decide what should be done with the child until the court which granted the divorce can assume "its proper jurisdiction and award its custody, provide for its support, and make such other orders and directions for its care and protection as may be called for in the premises.

It is further pertinently said by Justice Hoke, in the Samuel Parker case, supra: “The authorities are to the effect that in this country the disposition of the child rests in the sound legal discretion of the court, and that it will be exercised as the best interest of the child may require. Newsome v. Bunch, 142 N. C., 19; Tiffany on Persons and Domestie Relations, p. 308; Shouler on Domestic Relations, sec. 240. The best interest of the child is being given more and more prominence in cases; of this character; and, on special facts, has been made the paramount and controlling feature in well considered decisions. Bryan v. Lynn, 104 Ind., 227; In re Welsh, 74 N. Y., 299; Kelsey v. Greene, 69 Conn., 291. Again, I think it is well established that while, in habeas corpus- proceedings concerning the custody of children, the power of the court is ordinarily restricted to freeing them from illegal restraint and allowing them to select their placing, or go where they please, that this is only true where the child, in a given case, is of years of discretion and sufficient intelligence to determine the question for itself; and where it is otherwise, when the child is not of proper age or sufficient intelligence to determine for himself, the court must decide for him, and make orders for his being placed in proper custody,” citing Musgrove v. Kornegay, 52 N. C., 73; In re Wollstonecraft, 4 Johnston Chan., 79; Mayne v. Baldwin, 5 N. J. Eq., 454; Church on Habeas Corpus, sec. 439; 15 A. & E., p. 185, note 5.

We are of the opinion, therefore, that under our general powers, as defined in the Constitution, Art. IY, sec. 8, which confers jurisdiction upon *283 this Court to issue any remedial writs (or process) necessary to give it a general supervision and control over tbe proceedings of tbe inferior courts, we are not compelled, while reversing tbe judge’s order in tbis case — for want of special jurisdiction to make and enforce — to transfer tbe custody of tbe child to tbe respondent, but having tbe good of tbe child constantly before us, we may make such order for its custody and care temporarily, and until proper application may be seasonably made by tbe petitioner, tbe mother of tbe child — which child is of tender years, and too young to act discreetly for itself — to tbe Superior Court of Mecklenburg County for such order as it may see fit to make regarding tbe custody and support of tbe child; and, meanwhile, we direct that tbe mother retain custody of tbe child until her application can be beard and passed upon by tbe said court. Tbe mother’s application to tbe said court will be made on tbe first day of tbe next term of tbe Superior Court of Mecklenburg County, or at such other time and place as that court may then direct it to be beard, but at least ten days notice of said application shall be given before tbe first day of tbe next term of said court to tbe respondent.

Tbe judgment of tbe court below will be reversed, subject to tbe temporary provision herein made for tbe custody of tbe child, pending tbe further litigation of tbe matter.

The plaintiff will pay tbe costs of tbis Court in tbe appeal, but without prejudice to any application she may make to tbe Superior Court of Mecklenburg County to determine tbe ultimate payment of tbe same, and to make any other orders or provisions which may be proper and according to law.

Error.