Blankenship v. Blankenship

124 S.E.2d 857 (1962)

256 N.C. 638

Freneau Merritt BLANKENSHIP v. Nancy Peete BLANKENSHIP.

No. 89.

Supreme Court of North Carolina.

April 11, 1962.

*859 W. Paul Young, Swannanoa, Lamar Gudger, Asheville, for plaintiff.

Van Winkle, Walton, Buck & Wall, by Herbert L. Hyde, Asheville, Bryant, Lipton, Strayhorn & Bryant, Durham, for defendant.

DENNY, Chief Justice.

The question posed for determination is whether or not the action for absolute divorce instituted on 16 February 1960 in the General County Court of Buncombe County ousted the jurisdiction of the Superior Court of Warren County to determine the custody of the children born of the marriage in the action instituted in Warren County on 31 January 1958 for alimony without divorce and for the custody of the minor children pursuant to the provisions of G.S. § 50-16 as amended by Chapter 925 of the 1953 Session Laws of North Carolina and Chapters 814 and 1189 of the 1955 Session Laws of North Carolina.

In order to reach a decision on the question presented, the former decisions of this Court must be considered in light of the recent amendments to Chapter 50 of the General Statutes of North Carolina relating to divorce and alimony.

Chapter 925 of the 1953 Session Laws of North Carolina amended G.S. § 50-16 as follows: "In a proceeding instituted under this section, the plaintiff or the defendant may ask for custody of the children of said parties, either in the original pleadings or in a motion in the cause. Whereupon, the court may enter such orders in respect to said custody as might be entered upon a hearing on a writ of habeas corpus issued for the purpose of determining the custody of said children. Such request for custody of the children shall be in lieu of a petition for a writ of habeas corpus, but it shall be lawful for the custody of said children to be determined upon a writ of habeas corpus, provided the petition for said writ is filed prior to the filing of said pleadings or motion for such custody in the cause instituted under this section."

*860 This section was further amended by Chapter 814 of the Session Laws of 1955 to read: "`* * * Or she may set up such cause of action as a cross-action in any suit for divorce, either absolute or from bed and board; and the husband may seek a decree of divorce, either absolute or from bed and board, in any action brought by his wife under this Section.'

"Sec. 1(a) Provided that this Act shall not apply to pending litigation."

The statute was also amended by Chapter 1189 of the 1955 Session Laws by adding the following provisions: "The court may enter orders in a proceeding under this Section relating to the support and maintenance of the children of the plaintiff and the defendant in the same manner as such orders are entered by the court in an action for divorce, irrespective of what may be the rights of the wife and the husband as between themselves in such proceeding.

"In any action instituted by the wife under the provisions of this Section when there is a minor child or children, the complaint in such action shall set forth the name and age of such child or children; and if there be no minor child, the complaint shall so state."

G.S. § 50-11 was amended by Chapter 872 of the 1955 Session Laws of North Carolina by rewriting the second proviso of said section to read as follows: "and, provided, further, that except in case of divorce obtained with personal service on the wife, either within or without the State, upon the grounds of the wife's adultery and except in case of divorce obtained by the wife in an action initiated by her on the ground of separation for the statutory period, a decree of absolute divorce shall not impair or destroy the right of the wife to receive alimony and other rights provided for her under any judgment or decree of a court rendered before the rendering of the judgment for absolute divorce." (Emphasis added)

Prior to the 1953 and 1955 amendments to G.S. § 50-11 and G.S. § 50-16, this Court held uniformly that the court in which a divorce action was instituted obtained the exclusive jurisdiction over the custody of the children born of the marriage. In re Blake, 184 N.C. 278, 114 S.E. 294; In re Albertson, 205 N.C. 742, 172 S.E. 411; Reece v. Reece, 231 N.C. 321, 56 S.E.2d 641. See Cox v. Cox, 246 N.C. 528, 98 S.E.2d 879, which involved no question of conflicting jurisdiction.

Likewise, prior to the 1953 amendment to G.S. § 50-16, the right to custody of the children born of the marriage could not be determined in an action for alimony without divorce.

We have not been called upon heretofore to interpret the identical question posed on this appeal.

It will be noted that G.S. § 17-39 was amended by Chapter 545 of the 1957 Session Laws of North Carolina and the amendment is now codified as G.S. § 17-39.1, which no longer requires the marital status of the parents to be a factor in determining the procedure to obtain custody of a child by habeas corpus. Cleeland v. Cleeland, 249 N.C. 16, 105 S.E.2d 114.

This Court has also held that a judgment for absolute divorce does not invalidate a judgment for alimony without divorce entered before the action for absolute divorce was instituted. G.S. § 50-11; Deaton v. Deaton, 237 N.C. 487, 75 S.E.2d 398.

G.S. § 50-11, as amended, now provides that a decree of absolute divorce except under certain designated situations "shall not impair or destroy the right of the wife to receive alimony and other rights provided for her under any judgment or decree of a court rendered before the rendering of the judgment for absolute divorce." (Emphasis added)

The defendant herein was awarded the custody of her children and support pendente lite for herself and children in the case of NANCY PEETE BLANKENSHIP v. FRENEAU MERRITT BLANKENSHIP *861 pending in the Superior Court of Warren County on 28 March 1958 and the cause was retained for further orders.

It is pointed out in pertinent part in G.S. § 50-13: "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 * * *."

There is nothing in the above statute to the effect that institution of a divorce action ousted jurisdiction of another court, previously acquired, to determine the rights of custody of the children of the marriage. It would seem that the 1953 amendment to G.S. § 50-16, granting jurisdiction to determine custody in an action for alimony without divorce, creates an additional method whereby the matter of custody may be determined. The provisions added to G.S. § 50-16 by Chapter 1189 of the 1955 Session Laws of North Carolina, hereinabove set out, support this conclusion. Certainly, the first paragraph of the 1955 amendment, Chapter 1189, applies only to the support and maintenance of a child or children whose custody was adjudicated under a proceeding instituted pursuant to the provisions of G.S. § 50-16 as amended. Therefore, the court first obtaining jurisdiction of the parties would retain the cause.

In Schlagel v. Schlagel, 253 N.C. 787, 117 S.E.2d 790, the question before the court was whether or not a suit for alimony without divorce under G.S. § 50-16 was one in which a judgment by default and inquiry might be entered by a clerk of the superior court. It was held that an action under G.S. § 50-16 was a divorce action within the purview of G.S. § 50-10 which requires that the facts be found by a jury before the entry of a judgment granting a divorce. Winborne, C. J., after tracing the history of the statutory provisions for alimony without divorce in this State, said: "As is shown in the cases cited above, G.S. § 50-10 applies to a divorce from bed and board under G.S. § 50-7. A divorce from bed and board is nothing more than a judicial separation; that is, an authorized separation of the husband and wife. Such divorce merely suspends the effect of the marriage as to cohabitation, but does not dissolve the marriage bond. See Nelson, Divorce and Annulment, Vol. 1, p. 17 (2nd Ed.). This is precisely the effect of an action under G.S. § 50-16, except that it is only available to the wife.

"* * *

"Indeed, in Rector v. Rector, 186 N.C. 618, 120 S.E. 195, 196, Clark, C. J., said, `* * * Suits for alimony without divorce are within the analogy of divorce laws * * *.'"

Therefore, if, as stated in Schlagel v. Schlagel, supra, an action for divorce from bed and board is equivalent to an action for alimony without divorce, it would seem that the custody jurisdiction conferred in both actions would be concurrent in the absence of specific language to the contrary in the statute.

Furthermore, if an action for absolute divorce is instituted and the custody of children born of the marriage is prayed for therein, if the wife is the defendant in such action she is not estopped from bringing an action for alimony without divorce during the pendency of such action. Beeson v. Beeson, 246 N.C. 330, 98 S.E.2d 17. However, under the conclusion we have reached, she could not have the custody of the children born of the marriage adjudicated in the second action. Jurisdiction of the matters relating to custody having been *862 invoked theretofore in the action for divorce, the court in which the divorce action was pending would have exclusive jurisdiction over the question of custody.

All decrees with respect to custody and support of minor children are subject to the further orders of the court. Therefore, we hold that the granting of the absolute divorce dissolving the bonds of matrimony between the plaintiff and the defendant did not divest the Superior Court of Warren County of jurisdiction of the minor children born of the marriage or abate the action with respect to any right of the wife to recover alimony pendente lite which accrued prior to the date of the entry of the judgment for absolute divorce, or any "other rights provided for her in any judgment or decree of the court" in the Warren County case, rendered before the rendering of the judgment of absolute divorce. Yow v. Yow, 243 N.C. 79, 89 S.E.2d 867. Therefore, the judgment of the court below is

Reversed.

SHARP, J., took no part in the consideration or decision of this case.