Neal v. Neal

69 N.C. App. 766 | N.C. Ct. App. | 1984

PHILLIPS, Judge.

The sole question presented for determination is whether the Wake County District Court has jurisdiction to consider plaintiffs motion for the allowance of visitation with her child. Obviously, it has. Authorizing visitation by a parent is part of the child custody awarding and controlling process; and that the court had jurisdiction when it awarded defendant custody of the child and reserved the right to determine plaintiffs visitation later is self-evident, and not disputed. Defendant’s contention that the jurisdiction of the court was lost when he and the child moved to Georgia is without merit. Jurisdiction once acquired is generally not divested by subsequent events. 21 C.J.S. Courts § 93 (1940). “For once jurisdiction of a court attaches it exists for all time until the cause is fully and completely determined.” Kinross-Wright v. Kinross-Wright, 248 N.C. 1, 11, 102 S.E. 2d 469, 476 (1958); also In re Peoples, 296 N.C. 109, 250 S.E. 2d 890 (1978), cert. denied, 442 U.S. 929, 61 L.Ed. 2d 297, 99 S.Ct. 2859 (1979). Since this principle applies even in the absence of an express reservation of power by the court to complete a determination undertaken, we certainly cannot hold that the principle is unavailable where the power to complete the adjudication was expressly reserved. Furthermore, defendant having obtained custody of the child by the very order that reserved unto the court the power to consider plaintiffs visitation motion, he is estopped to deny the court’s jurisdiction to comply therewith; since no action concerning the child is pending in Georgia, requiring plaintiff to file suit there now in order to visit her child would unnecessarily multiply litigation, which the law does not favor; and the court, having expressly invited plaintiff to petition for visitation privileges when her health improved, should keep its commitment, even as litigants are required to do.

Holland v. Holland, 56 N.C. App. 96, 286 S.E. 2d 895 (1982), strongly relied upon by defendant, has no application. In that case, which involved an original custody application for a child that had lived out-of-state for six years, the only basis for jurisdiction was the Uniform Child Custody Jurisdiction Act, G.S. 50A-1, et seq., the conditions of which were not met for the reasons set out in the court’s opinion. Whereas, in this case, the court unquestionably had custody jurisdiction from the filing of the action onward under G.S. 7A-244 and G.S. 50-13.1, et seq. and while so endowed with jurisdiction expressly reserved the power to consider the request that has now been made.

Affirmed.

Judges Hedrick and Arnold concur.