North Carolina Absolute Divorce Custody Support Final Judgment Lawyers Attorneys

ROBERT E. JOHNSON v. ELIZABETH J. JOHNSON

COURT OF APPEALS OF NORTH CAROLINA

May 24, 1972, Filed

Plaintiff instituted this action for divorce on 4 September 1970 and judgment granting an absolute divorce was entered on 23 November 1970. The complaint sets forth the names and ages of the two minor children born of the marriage, as required by G.S. 50-8, but no request is made therein for custody or other order with respect to the children.

The children are not mentioned in the divorce judgment. On 17 September 1971 defendant filed a motion in the cause asking for custody and support of the two minor children. Plaintiff moved to dismiss the motion on two grounds: (1) the children are now domiciled in the State of South Carolina and the court therefore has no subject matter jurisdiction; and (2) the court acquired no jurisdiction over the children in the divorce proceeding since no custody order, or other order respecting the children, was entered therein. The court allowed plaintiff's motion on both grounds asserted and

Defendant father appealed.

Issues:

Whether the trial court erred in holding that it was without jurisdiction to proceed the Custody case?

Does a court in which a divorce action is tried retain jurisdiction of custody and support of children of the marriage where no custody or support questions are raised prior to, or determined in, the final judgment of divorce?

Discussion:

1) Whether the trial court erred in holding that it was without jurisdiction to proceed the Custody case?

Under G.S. 50-13.5(c)(1) the court had jurisdiction to determine the matter of support, this type of action being in personam in nature. Under subsection (2) (b) and (3) the court likewise had jurisdiction to enter an order granting custody to either of the children's parents, both of whom are subject to the court's jurisdiction. Plenary authority exists to enforce any order entered with respect to custody or support. G.S. 50-13.3; G.S. 50-13.4. This Court concludes, therefore, that the trial court erred in holding that it was without jurisdiction to precede for the reason that the children were not within this State.

2) Does a court in which a divorce action is tried retain jurisdiction of custody and support of children of the marriage where no custody or support questions are raised prior to, or determined in, the final judgment of divorce?

The Court States that, a divorce action is pending for purposes 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. We see nothing in the provisions of G.S. 50-13.5, which would alter the above rule and divest a court of jurisdiction to determine custody or support in an action where a divorce judgment was entered without these matters having been determined. Granting an alternative method for determining custody and support where a final judgment of divorce has been entered was undoubtedly intended to eliminate the often times inconvenient requirement that a parent living in another county go back to the county where a divorce was obtained in order to have custody and support of minor children initially determined. It does not preclude a parent from doing so, however, if the parent so desires. Hence this Court held that the lower court had proper jurisdiction to entertain defendant's motion.

Conclusion:

The court reversed a judgment dismissing the father's motion for custody and support of his children.

Disclaimer:

These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content

North Carolina Absolute Divorce Custody Support Final Judgment Lawyers Attorneys

By: Atchuthan Sriskandarajah

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