Edwards v. Edwards

263 N.C. 522

• Court: Supreme Court of North Carolina
• Decided: January 16, 1965
• Status: Published

Opinion

Per Cueiam.

The plaintiff contends the court below was without jurisdiction to award custody of the minor children born of the marriage between plaintiff and defendant, since she did not pray for custody in her action for alimony and support for the children. The plaintiff did, however, allege in her complaint that prior to the institution of her action, the defendant did procure a writ of habeas corpus to determine the custody of said children, which proceeding was still pending in the Superior Court of Scotland County. Moreover, the plaintiff served notice on the defendant before the hearing below, that Latham, S.J. would be requested to award custody of the children to her. Therefore, we hold that the court below had the right to hear and determine all questions raised in both proceedings.

According to the record, the plaintiff has had custody of the minor children involved since the plaintiff and defendant separated on 29 November 1963. However, as a prerequisite to the right of plaintiff to retain custody of said children, which custody the court awarded to her, she is required to do these things: (1) live without any financial support from her husband; (2) reside in the Shiloh Baptist Church Parsonage on Saunders Street in the City of Maxton, North Carolina, and devote her energies and attention to the rearing of the four children of the parties; and (3) abandon her professional career as a school teacher and cease all employment and remain at home with her children.

In our opinion, the foregoing order does not comport with sound judicial discretion and it is set aside and the cause remanded for a hearing de novo. Martin v. Martin, 263 N.C. 86, 138 S.E. 2d 801.

Error and remanded.