Sadler v. Sadler

65 S.E.2d 345 (1951)

234 N.C. 49

SADLER v. SADLER.

No. 739.

Supreme Court of North Carolina.

June 7, 1951.

*346 Victor S. Bryant and Robert I. Lipton, Durham, for plaintiff appellee.

J. M. Watts, Jr., Milledgeville, Ga., J. J. Fyne, and Douglass & McMillan, all of Raleigh, for defendant appellant.

BARNHILL, Justice.

The parties to this action are now living separate and apart. Each charges the other with abandonment. After the separation, defendant returned to the State of Georgia where she has since maintained her residence. Under these circumstances the plaintiff may not now assert the fictional unity of man and wife for the purpose of maintaining that his domicile is the domicile of his wife and children. Coble v. Coble, 229 N.C. 81, 47 S.E.2d 798.

Plaintiff is a nonresident of the State of Georgia. Even so, he invoked the jurisdiction of a court of that State. He sought relief in that forum. He was present and voluntarily submitted himself to the jurisdiction of that court with respect of matters within the scope of its power and authority. He, as well as the court below, is bound by the judgment therein entered, at least so long as the children remain in that State. In re Prevatt, 223 N.C. 833, 28 S.E.2d 564; Board Commissioners of Buncombe County v. Scales, 171 N.C. 523, 88 S.E. 868.

The decree entered in the proceeding in Georgia instituted by plaintiff must be accorded full faith and credit in this jurisdiction. Allman v. Register, 233 N.C. 531, 64 S.E.2d 861.

The court below was without authority to enter any valid order affecting the custody of infants in the State of Georgia. Coble v. Coble, supra, and cases cited.

So then, the effect of the order entered in the court below is to compel the defendant, under threat of citation for contempt, deliberately to attempt to defeat the jurisdiction of the Georgia court, already assumed, and bring the children within the jurisdiction of the court below so that it may reconsider the question of custody of the children, and, possibly, reverse the decree of a sister State. It is true the courts, to further the ends of justice, may in a proper case, by a decree in personam, require a party to an action to do some act in respect to property outside its jurisdiction and to enforce its order through its coercive authority. McRary v. McRary, 228 N.C. 714, 47 S.E.2d 27. But occasion for exercising that authority is not made to appear on this record. It is our duty and privilege to honor and respect the lawful decrees of sister States. It is not the way of the courts of this State to attempt to evade or defeat them. That part of the order to which defendant excepts was improvidently entered.

Had the defendant removed the children of the marriage from this State, after the summons and complaint in this cause *347 was served upon her, for the purpose of defeating the jurisdiction of a court of this State, we might take a somewhat different view of the situation.

The appeal here is not, as contended by plaintiff fragmentary and premature. The defendant was ordered to commit a positive act which would defeat her rights under the Georgia decree. Had she been content merely to enter her exception and delay her appeal until the final determination of the action, she would have had no election other than to comply with the order or else subject herself to the coercive authority of the court.

The quoted paragraph (a) of the order entered to which the defendant excepts must be vacated. The decree, to that extent, is

Reversed.