In Re Custody of Skipper

135 S.E.2d 671 (1964)

261 N.C. 592

In the Matter of the Custody of Elizabeth Anne SKIPPER and Michael Frederick Skipper, Minors.

No. 176.

Supreme Court of North Carolina.

April 8, 1964.

*672 Burnett & Burnett, Wilmington, for applicant appellant.

George Rountree, Jr., Wilmington, for respondent appellant.

RODMAN, Justice.

Respondent assigns as error that portion of Judge Mintz' order holding the plea in abatement insufficient to deprive the Superior Court of this State of jurisdiction to determine the question of custody. Since this contention, if sustained, would render petitioner's appeal moot, we decide respondent's appeal first.

A plea in abatement seeking dismissal of an action, because another action is pending between the same parties on the same right of action, should be sustained when, and only when, the actions are pending in different courts of the same sovereign. If the actions are brought in courts of different states, the plea should be overruled. Wilburn v. Wilburn, 260 N.C. 208, 132 S.E.2d 332; Chicago R. I. & P. R. Co. v. Schendel, 270 U.S. 611, 46 S. Ct. 420, 70 L. Ed. 757; Commercial National Bank of San Antonio v. Continental Bank & Trust Company, 5 Cir., 88 F.2d 160, cert. den., 301 U.S. 692, 57 S. Ct. 795, 81 L. Ed. 1348; Miami County National Bank of Paola, Kansas v. Bancroft, 10 Cir., 121 F.2d 921; Stanton et al. v. Embrey, 93 U.S. 548, 23 L. Ed. 983; Simmons v. Superior Court, 96 Cal. App. 2d 171, 214 P.2d 844, 19 A.L.R.2d 288; 1 C.J.S. Abatement and Revival, § 63, p. 97.

Respondent did not request the Superior Court to refrain from exercising jurisdiction until the South Carolina court could act. To the contrary, he denied the authority of the courts of this State to act. In that he was mistaken. Petitioner and respondent had voluntarily submitted themselves to the jurisdiction of the courts of this State. The children, the res, were living in this State. The Superior Court of New Hanover County had the authority and duty to act. G.S. § 17-39.1. In Re Hughes, 254 N.C. 434, 119 S.E.2d 189; Gafford v. Phelps, 235 N.C. 218, 69 S.E.2d 313; Jackson v. Jackson, 241 S.C. 1, 126 S.E.2d 855.

Parents are under a legal obligation to support their children. Primarily, this obligation rests on the father. Goodyear v. Goodyear, 257 N.C. 374, 126 S.E.2d 113; Lee v. Coffield, 245 N.C. 570, 96 S.E.2d 726; In Re TenHoopen, 202 N.C. 223, 162 S.E. 619.

The Statute, G.S. § 17-39.1, authorizes the court to award custody "under such regulations and restrictions, and with such provisions and directions, as will, in the opinion of the judge, best promote the interest and welfare of said child." The statutory language, authorizing an award of custody, implies the power to compel the person responsible for the support of a child to perform his duty. Bunn v. Bunn, 258 N.C. 445, 128 S.E.2d 792.

The court erred in concluding respondent's plea in abatement, based on the pendency of the action in South Carolina, deprived the courts of this State of the power *673 to compel respondent to provide reasonable support for his children, who are now living in this State. The court should make such order as will best serve the interest of the children, having regard for the affection of each parent for the children and the ability of each to provide support.

On respondent's appeal: Affirmed.

On petitioner's appeal: Reversed.