Swicegood v. Swicegood

154 S.E.2d 324 (1967)

270 N.C. 278

W. Carlton SWICEGOOD v. Peggy Loving SWICEGOOD.

No. 445.

Supreme Court of North Carolina.

May 3, 1967.

*326 Wilson & Beeker by Ned A. Beeker, Lexington, for plaintiff appellant.

No counsel for defendant appellee.

PER CURIAM.

We have before us two addenda to the record. The first addendum is a petition of W. Carlton Swicegood verified by him on 19 July 1965, seeking the custody of his two and one-half year old daughter, Shelia Diane Swicegood, born of the marriage between him and respondent, and seeking an order requiring respondent to desist from interference with the custody of the said child. This petition states that it is brought pursuant to the provisions of G.S. § 50-13, which is in error, because it was brought under the provisions of G.S. § 17-39, as set forth in the order of Judge Crissman entered at the 30 July 1965 Session of the Superior Court of Davidson County, which appears in the second addendum to the record. The order dated 30 July 1965 and the judgment dated 14 October 1965 of Judge Crissman and the order of Judge Shaw dated 13 October 1966 in respect to the custody of Shelia Diane Swicegood were entered in the Superior Court of Davidson County, although in different cases.

G.S. § 50-13 reads:

"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 to 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 * * *."

A judgment awarding the custody of a child under the provisions of G.S. § *327 17-39 does not oust the jurisdiction of the court to hear and determine a motion in the cause for the custody of the children or a child in a subsequent divorce action between the parties. Robbins v. Robbins, 229 N.C. 430, 50 S.E.2d 183; Weddington v. Weddington, 243 N.C. 702, 92 S.E.2d 71.

When plaintiff obtained an absolute divorce in the case heard by Judge Shaw, Judge Shaw after final judgment therein had exclusive jurisdiction by the specific terms of G.S. § 50-13 to make such orders respecting the care and custody of Shelia Diane Swicegood as may be proper. Coggins v. Coggins, 260 N.C. 765, 133 S.E.2d 700; Story v. Story, 221 N.C. 114, 19 S.E.2d 136; 3 Lee, N.C. Family Law, 3d Ed., § 222, p. 9. Professor Lee, ibid, p. 10, states: "A decree awarding the custody of a child in a habeas corpus proceeding does not oust the court of jurisdiction to hear and determine the custody of the child in a subsequent divorce proceeding under G.S. 50-13."

While the welfare of a child is always to be treated as the paramount consideration, the courts recognize that wide discretionary power is necessarily vested in the trial courts in reaching decisions in particular cases. Griffin v. Griffin, 237 N.C. 404, 75 S.E. 133; 2 Strong's N.C. Index, Divorce and Alimony, § 24. We have frequently stated that the findings of the court in regard to the custody of children are conclusive when supported by competent evidence. 2 Strong's Index, ibid. Judge Shaw in his order dated 13 October 1966 found two facts, to wit, that the court has heretofore awarded to W. Carlton Swicegood the custody of the said Shelia Diane Swicegood and that the court has granted the parties an absolute divorce. Without finding any additional facts, Judge Shaw entered an order that the custody of the said Shelia Diane Swicegood shall remain with her father and that visiting privileges shall be granted to the child's mother, Peggy Loving Swicegood, from 10 a. m. until 6 p. m. every other Saturday beginning 15 October 1966. Courts are generally reluctant to deny all visitation rights to the divorced parent of a child of tender age, but it is generally agreed that visitation rights should not be permitted to jeopardize a child's welfare. Annot. 88 A.L.R.2d 148, §§ 3(d) and 6. Judge Shaw's order is fatally defective in that he has entered an order awarding the custody of Shelia Diane Swicegood to the father and visitation rights to the mother without any detailed findings of fact from which we can determine that his order is adequately supported by competent evidence, and is for the best welfare of Shelia Diane Swicegood. Judge Crissman's order and judgment in respect to the custody of Shelia Diane Swicegood did not oust the court of jurisdiction to hear and determine the custody of this child in the action in which the parties were subsequently divorced. Judge Shaw's order is vacated, and the case is remanded to the Superior Court of Davidson County for detailed findings of fact by the judge of that court in the divorce action between the parties which was instituted and granted in the Superior Court of Davidson County, as to what is best for the welfare of this child, and for such orders as may be proper.

Error and remanded.