114 S.E. 300 | N.C. | 1922
This is a petition for a writ of habeas corpus to determine the 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 father 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 Howellv. Howell,
When this statute is considered in connection with C. S., 1664, quotedsupra, 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.),
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,
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 *282
benefit (In re Samuel Parker,
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 Parkercase, 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,
We are of the opinion, therefore, that under our general powers, as defined in the Constitution, Art. IV, 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 the proceedings of the inferior courts, we are not compelled, while reversing the judge's order in this case — for want of special jurisdiction to make and enforce — to transfer the custody of the child to the respondent, but having the good of the child constantly before us, we may make such order for its custody and care temporarily, and until proper application may be seasonably made by the petitioner, the mother of the child — which child is of tender years, and too young to act discreetly for itself — to the Superior Court of Mecklenburg County for such order as it may see fit to make regarding the custody and support of the child; and, meanwhile, we direct that the mother retain custody of the child until her application can be heard and passed upon by the said court. The mother's application to the said court will be made on the first day of the next term of the Superior Court of Mecklenburg County, or at such other time and place as that court may then direct it to be heard, but at least ten days notice of said application shall be given before the first day of the next term of said court to the respondent.
The judgment of the court below will be reversed, subject to the temporary provision herein made for the custody of the child, pending the further litigation of the matter.
The plaintiff will pay the costs of this Court in the appeal, but without prejudice to any application she may make to the Superior Court of Mecklenburg County to determine the ultimate payment of the same, and to make any other orders or provisions which may be proper and according to law.
Error.