In Re Greer

215 S.E.2d 404 (1975)

26 N.C. App. 106

In the Matter of David Thomas GREER, Jr., and Allison Greer.

No. 753DC119.

Court of Appeals of North Carolina.

June 4, 1975.

Certiorari Denied July 9, 1975.

*407 Holshouser & Lamm by Charles C. Lamm, Jr., Boone, for appellants.

Beaman, Kellum & Mills by Norman B. Kellum, Jr., New Bern, for appellees.

Certiorari Denied by Supreme Court July 9, 1975.

CLARK, Judge.

At issue is whether the District Court, Pitt County, had the right to assume custody jurisdiction of the minor children, David Thomas Greer, Jr., and Allison Greer, upon its finding that they were "neglected" children as defined by G.S. § 7A-278(4), to the exclusion of the District Court, Watauga County, which had acquired previously such custody jurisdiction in a divorce and custody proceeding of the children's parents.

The original custody jurisdiction of the Superior Court of Watauga County is not questioned. That court transferred the cause to the District Court of that county by its order entered 3 September 1974. The custody jurisdiction of the court lasts as long as the action is pending. Phipps v. Vannoy, 229 N.C. 629, 50 S.E.2d 906 (1948). The custody order entered by the Superior Court of Watauga County in 1968 was not a final adjudication and could be modified upon application of either parent. Peoples v. Peoples, 8 N.C.App. 136, 174 S.E.2d 2 (1970). It has long been the rule in this State that a divorce action is pending for the purpose of determining custody and support until the death of one of the parties or the youngest child born of the marriage reaches the age of maturity, whichever event shall first occur. Weddington v. Weddington, 243 N.C. 702, 92 S.E.2d 71 (1956); Robbins v. Robbins, 229 N.C. 430, 50 S.E.2d 183 (1948); Johnson v. Johnson, 14 N.C.App. 378, 188 S.E.2d 711 (1972).

In Johnson v. Johnson, supra, it is said that in enacting G.S. § 50-13.1 et seq., effective 1 October 1967, the legislature sought to bring together in one act all statutes relating to child custody and support. In Tate v. Tate, 9 N.C.App. 681, 177 S.E.2d 455 (1970), it was held that G.S. § 50-13.5(f), relating to venue, contemplates only the institution of an action for custody and support, and does not affect the situation where custody and support have already been determined and one of the parties seeks a modification of the order.

But the District Court, Pitt County, takes the position that it obtained "exclusive" jurisdiction and venue for determining custody of the children under the provisions of G.S. § 7A-277 et seq., on the grounds that the children were "neglected" and found within the county. We do not agree. On 2 September 1974, a juvenile petition was filed by a caseworker for the Pitt County Social Services Department; she alleged on information and belief that the children were "subject to such serious neglect as might endanger their mental and emotional health." Thereupon and thereafter the District Court, Pitt County, assumed jurisdiction on the ground that the children were neglected as defined by G.S. § 7A-278(4) as follows:

"`Neglected child' is any child who does not receive proper care or supervision or discipline from his parent, guardian, custodian or other person acting as a parent, or who has been abandoned, or who is not provided necessary medical care or other remedial care recognized under State law, or who lives in an environment injurious to his welfare, or who has been placed for care or adoption in violation of law."

The District Court order appealed from, entered 4 October 1974, finds that the court acquired juvenile jurisdiction because it was found that the children were "neglected children" in the previous hearings of September 2 and September 5. Examination of the orders entered after these hearings *408 reveals that the order entered after hearing on September 2 merely repeats the language contained in the juvenile petition of the caseworker that the "child is in danger, or subject to such serious neglect as may endanger his health or morals," and the order of 5 September was entered after a hearing which consisted of considering the report submitted by a child psychologist which "pointed up grave dangers to the mental health and emotional stability of the children."

Neither of the above two orders recites any factual basis for a determination that the children were "neglected" as defined by G.S. § 7A-278(4); nor does it appear why the so-called neglect was discovered after visiting with their father for more than three months and only a few days before the day in which the original order of 1968 directed that they be returned to their maternal grandparents in Sparta to attend school. Since the District Court was assuming jurisdiction on the basis that "neglected children" were found in Pitt County, where they had been living with their father for about three months, it is the natural assumption that they were neglected there by their father, and there is nothing in the September 2 and September 5 orders of that court to refute that assumption. However, the order appealed from, makes findings of fact, based on the testimony of the two children and the "corroborating" testimony of the social worker and child psychologist from Pitt County, that assails the moral character of the mother, and that the maternal grandparents, custodians under the original 1968 court order, are old and do not want the children "to make any noise because of Mr. Allison's bronchial condition."

Thus, on such testimony and findings the District Court, Pitt County, again determined that it had jurisdiction on the grounds that the children were "neglected" as defined by G.S. § 7A-278(4).

Jurisdiction and procedure statutes applicable to juveniles (now G.S. §§ 7A-277 through 7A-289, effective 1 October 1969) have been amended and rewritten over the years, but for many years the statutes assigning juvenile jurisdiction (formerly G.S. § 110-21, now G.S. § 7A-279) contain the same "exclusive original jurisdiction" language. Nevertheless, it has been held that the jurisdiction statute applicable to juveniles places no limitation upon the jurisdiction previously conferred by statute upon the Superior Court to issue writs of habeas corpus and to determine the custody of children of separated parents, and that if either parent had proceeded under that statute in the Superior Court to obtain custody, the jurisdiction for that purpose would have appertained to that court, to the exclusion of the Juvenile Court. In Re Prevatt, 223 N.C. 833, 28 S.E.2d 564 (1944); McEachern v. McEachern, 210 N.C. 98, 185 S.E. 684 (1936). And in In Re Cranford, 231 N.C. 91, 56 S.E.2d 35 (1949), it was held that the recently enacted amendment to G.S. § 50-13, providing that either parent may institute a proceeding in the Superior Court to obtain custody, restricted the jurisdiction of the Juvenile Court granted by G.S. § 110-21.

It is the general rule that where there are courts of concurrent jurisdiction, the court which first acquires jurisdiction retains it. Becker v. Becker, 273 N.C. 65, 159 S.E.2d 569 (1968); Hall v. Shippers Express, 234 N.C. 38, 65 S.E.2d 333 (1951); Allen v. Insurance Co., 213 N.C. 586, 197 S.E. 200 (1938).

There appears to be no evidence and no factual finding to support the conclusion of the District Court, Pitt County, that the children were "neglected," and this Court had no lawful authority to usurp the custody jurisdiction of the District Court, Watauga County. It is obvious that the purpose of the proceedings in Pitt County was to determine custody of the minor children, a determination that should be made by the court in Watauga County which had and still has custody jurisdiction. Justice to all parties is best served when one judge is *409 able to see the matter whole. In re Custody of King, 3 N.C.App. 466, 165 S.E.2d 60 (1969).

It should be noted that in this case where only the question of custody is involved, if the factual circumstances justified a finding of "neglect", it is our opinion that the District Court, Pitt County, could properly assume jurisdiction and temporary custody of the children for the limited purpose of returning them to the proper custodian or the proper court; and in some cases involving delinquent, dependent, neglected, or undisciplined children the District Court where the children are found may assume custody jurisdiction under G.S. § 7A-277 et seq., even where another court has custody jurisdiction under G.S. § 50-13.1 et seq.

We find no legal justification for the orders of the District Court, Pitt County, restraining the father from returning the children to Watauga County; apparently the purpose was not the protection of the children but rather the protection of the father against punishment for contempt in the Watauga Court.

The District Court Division under G.S. § 7A-244 has jurisdiction over child custody. In the exercise of this jurisdiction no other Division in the General Court of Justice has a more awesome, difficult, or important task. Every determination of custody of children should be based on an in-depth consideration of all the evidence offered by the litigants and evidence sought and admitted by the court. Jurisdictional controversies between the courts should be avoided in these cases involving the welfare and protection of children with the view of reaching both a timely and just decision.

We vacate the Order of the District Court, Pitt County, entered 4 October, 1974, and we direct the court forthwith to enter an order returning the children, David Thomas Greer, Jr., and Allison Greer, to the custody of their maternal grandparents, Robert L. Allison and wife, Lena R. Allison, in Sparta, North Carolina, pending a hearing in the District Court, Watauga County, upon application of any interested party or parties or hearing by the court ex mero motu on the question of custody in the light of present circumstances.

Vacated and remanded.

PARKER and VAUGHN, JJ., concur.