GAFFORD
v.
PHELPS.
No. 89.
Supreme Court of North Carolina.
March 5, 1952.*316 W. L. Whitley, Plymouth, for petitioner.
Bailey & Bailey, Plymouth, for respondent.
DENNY, Justice.
We shall first consider and dispose of the petitioner's appeal.
The petitioner insists that she is entitled to the custody of her child pursuant to the provisions of the decree heretofore entered in her action for divorce in the State of Alabama. Therefore, the question for determination is simply this: Is a decree entered in a court of competent jurisdiction, in a sister state, awarding the custody of a child, domiciled in this State, valid and enforceable under the full faith and credit clause of the Constitution of the United States, Art. IV, sec. 1, where custody was awarded in accordance with a written agreement duly executed by the parents of the child and filed with the court?
Linda Dianne Phelps was not domiciled in the State of Alabama at the time the bonds of matrimony were dissolved between her parents in the Circuit Court of Mobile County, Alabama, on 25 June, 1948. Therefore, the decree awarding her custody is not enforceable under the full faith and credit clause of our Federal Constitution. 27 C.J.S., Divorce, § 333(c), page 1299; State ex rel. Rasco v. Rasco, 139 Fla. 349, 190 So. 510; Elliott v. Elliott, 181 Ga. 545, 182 S.E. 845; Callahan v. Callahan, 296 Ky. 444, 177 S.W.2d 565; Wilson v. Wilson, 136 Va. 643, 118 S.E. 270.
When a child is not within the jurisdiction of the court, such court is without power to make an order awarding the child's custody. Burrowes v. Burrowes, 210 N.C. 788, 188 S.E. 648; Coble v. Coble, 229 N.C. 81, 47 S.E.2d 798; Sadler v. Sadler, 234 N.C. 49, 65 S.E.2d 345. See Annotation 4 A.L.R. 2d 25. Moreover, a contract between divorced parents as to the custody and maintenance of their children, is not binding on the courts. 17 Am.Jur., Divorce and Separation, sec. 682, page 516; 27 C. J.S., Divorce, section 311, page 1177; In re Albertson, 205 N.C. 742, 172 S.E. 411; Story v. Story, 221 N.C. 114, 19 S.E.2d 136; State v. Duncan, 222 N.C. 11, 21 S.E.2d 822; Fortson v. Fortson, 195 Ga. 750, 25 S.E.2d 518.
The welfare of the child should be the paramount consideration which guides the court in making an award of custody. In re Alderman, 157 N.C. 507, 73 S.E. 126, 39 L.R.A.,N.S., 988; Clegg v. Clegg, 186 N.C. 28, 118 S.E. 824; Tyner v. Tyner, 206 N.C. 776, 175 S.E. 144; Pappas v. Pappas, 208 N.C. 220, 179 S.E. 661, Story v. Story, supra; Ridenhour v. Ridenhour, 225 N.C. 508, 35 S.E.2d 617; Brake v. Brake, 228 N.C. 609, 46 S.E.2d 643; Hardee v. Mitchell, 230 N.C. 40, 51 S.E.2d 884.
Furthermore, if the child in controversy had been domiciled with her father in Alabama at the time the decree, referred to herein, was entered in that State, and she and her father had become domiciled in Washington County, North Carolina, the Superior Court of that county would have jurisdiction to hear and determine questions as to her custody and welfare when properly presented. G.S. § 50-13; In re Alderman, supra; In re Biggers, 228 N.C. 743, 47 S.E.2d 32; Phipps v. Vannoy, 229 N.C. 629, 50 S.E.2d 906; Boone v. Boone, 76 U.S.App.D.C. 399, 132 F.2d 14, certiorari denied 319 U.S. 762, 63 S. Ct. 1319, 87 L. Ed. 1713; Boone v. Boone, 80 U.S.App.D.C. 152, 150 F.2d 153.
*317 The petitioner contends that the Alabama judgment cannot be valid in so far as it dissolves the bonds of matrimony, and at the same time invalid and unenforceable in so far as it purports to award custody of the minor child of the marriage. This contention is without merit.
In the case of In re Biggers, supra, decided on appeal from the Superior Court of Cabarrus County, this Court held that where the husband instituted a divorce action in the State of Florida, and the wife entered an appearance and filed an answer, the parties were bound by the decree in so far as it dissolved the marriage; and that such decree was valid in this State under the full faith and credit clause of the Constitution of the United States. However, Devin, J., (now Chief Justice) in speaking for the Court, said [228 N.C. 743, 47 S.E. 33]: "But it does not necessarily follow as a corollary therefrom that the decree of the Florida court awarding the custody of the children * * * is binding upon the courts of North Carolina. That decree in so far as it operates upon the children, has no extra-territorial effect. In re Alderman, 157 N.C. 507, 75 S.E. 126, 39 L.R.A.,N.S., 988. So that, if these children were at the time of the decree, or have since become and were at the time of the hearing below, residents of North Carolina and within the jurisdiction of the court in which relief on their behalf was sought, the Superior Court of Cabarrus County was not without authority or power to hear and determine questions as to their custody and welfare when properly raised."
The petitioner excepts to certain findings of fact by the court below. However, an examination of the record discloses that such findings are supported by competent evidence. Hence, these exceptions are overruled.
The judgment of the court below, in so far as it awards the custody of the child, Linda Dianne Phelps, to the respondent, William Herbert Phelps, will be upheld.
Respondent's appeal
The court below, after awarding custody to the respondent, imposed a condition which permits the petitioner to take the child to her home in Alabama and keep her from June 15 to August 15 of each year commencing with June 1952, and imposed upon the respondent liability for all reasonable expenses involved in returning the child to North Carolina, including the petitioner's expenses both ways. In lieu of paying such expenses, the respondent may, at his option and upon notice to the petitioner, go to petitioner's home and bring the child back with him. The respondent excepts to the above provisions of the order. The exception is well taken and will be sustained. In re DeFord, 226 N.C. 189, 37 S.E.2d 516.
In the case of Harris v. Harris, 115 N.C. 587, 20 S.E. 187, this Court said: "It does not appear that the mother * * * is in anywise more suitable than the father. The father is domiciled in this state. The mother is a nonresident. Under these circumstances, unless more shall appear, the custody should remain with the father. The court certainly would not, upon these facts, award the custody to a person out of the state. To award the custody alternately to the father and the nonresident mother would be to place the child out of the jurisdiction of the court, so that it would be impossible to enforce so much of the decree as directs the return of the child to the father after the specified time. The bond might possibly secure the payment of damages, but not the return of the child. The court, under special circumstances, may allow an infant ward to go out of its jurisdiction but it will abdicate its functions, and, upon the state of facts here appearing, take the child from a father of good character, who is taking every proper care of it, and place it out of the reach of its process, and beyond its control."
The respondent was found by the court below to be a fit and suitable person to have the custody of the child. On the other hand, while the court found that the petitioner is a good woman, and has a good husband; that they maintain a good home in Alabama and are in a position to give the child proper educational and material advantages, it also found that the child "has *318 not been happy with them and looks with dread upon the prospect of returning to their home * * *. It appears that she is a child of sensitive nature and is not compatible with petitioner and her present husband while there is great compatibility between the said child and respondent and his present wife who, it appears, is especially qualified by nature and training to understand and administer to her peculiar spiritual and emotional needs."
It is clear that the unusual conditions and circumstances which prompted the court to find that it was for the best interest of the child or children to be awarded to a nonresident, in the cases of, In re Means, 176 N.C. 307, 97 S.E. 39, and Clegg v. Clegg, 187 N.C. 730, 122 S.E. 756, are not present in this proceeding. "In a proceeding of this nature, in the absence of unusual circumstances, a court should not enter an order which permits an infant to be removed from the State by one to whom unqualified custody has not been awarded. Harris v. Harris, 115 N.C. 587, 20 S.E. 187; In re Turner, 151 N.C. 474, 66 S.E. 431; Page v. Page, 116 [166] N.C. 90, 81 S.E. 1060; Page v. Page, 167 N.C. 350, 83 S.E. 627; Walker v. Walker, 224 N.C. 751, 32 S.E.2d 318." In re DeFord, supra [226 N.C. 189, 37 S.E. 518].
So much of the judgment below as permits the petitioner to take the child out of the State, must be stricken. In lieu thereof, the court, in its discretion, may make provision for the petitioner to visit her child in this State under such conditions and circumstances as the court may deem proper. In re DeFord, supra.
Modified and affirmed.