Hopkins v. Hopkins

174 S.E.2d 103 (1970)

8 N.C. App. 162

Jack HOPKINS v. Sally HOPKINS.

No. 7028SC20.

Court of Appeals of North Carolina.

May 27, 1970.

*107 Sheldon L. Fogel, Raleigh, for plaintiff appellant.

Gudger, Erwin & Crow, by James P. Erwin, Jr., Asheville, for defendant appellee.

MORRIS, Judge.

Originally, custody of the children had been awarded to the mother of the children pursuant to a divorce decree in the State of Florida. The children are considered domiciled where the mother is domiciled. Allman v. Register, 233 N.C. 531, 64 S.E.2d 861 (1951). The mother is a resident of and is domiciled in Florida. The children lived with their mother in Florida. They have only been in North Carolina for temporary periods of time when they visited with their father, after he became a resident of North Carolina.

Since this action was begun on 28 August 1967, G.S. § 50-13 applies, even though it was repealed and replaced by G.S. §§ 50-13.1 through 50-13.8, which became effective from and after 1 October 1967. This statute as amended does not apply retroactively. Speck v. Speck, 5 N.C.App. 296, 168 S.E.2d 672 (1969).

Prior to the 1967 amendments of the statute (G.S. § 50-13), our Supreme Court had held that "(w)here decree of divorce of another State awards the custody of the minor children of the marriage, our court has no jurisdiction in the proceeding under G.S. § 50-13 to award the custody of the children except in conformity with the decree of the sister state unless the children are domiciled in this State at such time." Allman v. Register, supra.

In Richter v. Harmon, 243 N.C. 373, 90 S.E.2d 744 (1956), the Court quoted 43 C.J.S. Infants § 5, p. 52, et seq., with approval and stated:

"`Jurisdiction to control, and determine and regulate the custody of, an infant is in the courts of the state where the infant legally resides, and the courts of another state are without power in the premises, and cannot obtain jurisdiction *108 for such purpose over persons temporarily within the state. * * *'"

While Allman v. Register, supra, has been distinguished and harmonized by our Supreme Court in various decisions [see Dees v. McKenna, 261 N.C. 373, 134 S.E.2d 644 (1965); Lennon v. Lennon, 252 N.C. 659, 114 S.E.2d 571 (1960); Richter v. Harmon, supra], it still, on its facts, remained the law of North Carolina until the 1967 legislative amendments of G.S. § 450-13, which became affective on 1 October 1967. The facts in Allman and the facts in this case are substantially the same. In each case the children were domiciled and resident in another state. The children were visiting with their father in North Carolina for a specific and temporary period of time. In the case before us the father petitioned the court during this time for an award of custody of the children. The fact that the mother filed an answer in the father's action for custody did not confer jurisdiction over these children. Allman controls here, and we hold that the orders of the General County Court issued in the action commenced 28 August 1967 are null and void since the court was without jurisdiction to determine the matter.

When a court decides a matter without the court's having jurisdiction, then the whole proceeding is null and void, i. e., as if it had never happened. Burgess v. Gibbs, 262 N.C. 462, 137 S.E.2d 806 (1964); Hart v. Motors, 244 N.C. 84, 92 S.E.2d 673 (1956); Hill v. Stansbury, 224 N.C. 356, 30 S.E.2d 150 (1944).

On 7 August 1968 the plaintiff filed a motion in this action asking for custody of the oldest child. The plaintiff alleged change of conditions since the entry of the original judgment granting custody to the defendant on 27 October 1967. This motion is merely a continuance of the original action. See Lee, N.C. Family Law, § 226, and G.S. § 50-13.7(a). Since we hold that the court did not have jurisdiction in the original action, then it logically follows that the court could not modify that which was null and void. See Hill v. Stansbury, supra.

The question arises as to whether the motion filed on 7 August 1968 might be treated as a motion for a "new order" under G.S. § 50-13.7(b) (effective 1 October 1967).

G.S. § 50-13.7(b) reads as follows:

"(b) When an order for custody or support, or both, of a minor child has been entered by a court of another state, a court of this State may, upon gaining jurisdiction, and upon a showing of changed circumstances, enter a new order for support or custody which modifies or supersedes such order for custody or support."

In order to invoke the aid of this statute, the plaintiff must show (1) jurisdiction and (2) changed circumstances.

Jurisdiction after 1 October 1967 could be acquired under G.S. § 50-13.5(c) (2)a, when the child is "physically present" in this State. The child at the time of the filing of the motion in August 1968 may have been physically present in this State. If the court had acquired jurisdiction the fact that the child subsequently left the State would not deprive the court of jurisdiction. G.S. § 50-13.5(c) (4). However, filing a motion in a cause in which the court has not acquired jurisdiction does not serve to confer jurisdiction under G.S. § 50-13.7. Moreover, the "Motion to be used as an affidavit" filed by the plaintiff on 7 August 1968 does not contain allegations sufficient to state a cause of action under G.S. § 50-13.7(b).

Plaintiff contends that the orders of one judge of the General County Court may not be modified or reversed by another judge of the General County Court. The rule as to the authority of one superior court judge to modify and reverse the orders of another superior court judge is applicable here. See Johnson *109 v. Johnson, 7 N.C.App. 310, 172 S.E.2d 264 (1970). However, the correct rule upon these facts is stated in 2 Strong, N.C. Index 2d, Courts, § 9: "If a judge of the Superior Court enters an order without legal power to act in respect to the matter, such order is a nullity, and another Superior Court judge may disregard it without offending the rule which precludes one Superior Court judge from reviewing the decision of another." The General County Court had no jurisdiction to determine the custody of the children in the action commenced on 28 August 1967. Judge Cogburn of the General County Court did not commit error in setting aside the orders issued and dismissing the action.

For the reasons stated above, the judgment of the Superior Court of Buncombe County is

Affirmed.

PARKER and VAUGHN, JJ., concur.