In Re Blalock

64 S.E.2d 848, 233 N.C. 493, 25 A.L.R. 2d 818, 1951 N.C. LEXIS 345

• Court: Supreme Court of North Carolina
• Decided: May 2, 1951
• Docket: 92
• Status: Published

Opinion

'Winborne, J.

The sole assignment of error presented on this appeal is predicated upon exception to the judgment and the signing of it. Such assignment of error raises only the questions as to (1) whether the facts found by the judge of the Domestic Relations Court of Buncombe County, North Carolina, and reiterated by the judge of the Superior Court on appeal, support the judgment from which appeal is taken, and (2) whether error in matters of law appears upon the face of the record. Culbreth v. Britt Corp., 231 N.C. 76, 56 S.E. 2d 15, and eases cited. See also Burnsville v. Boone, 231 N.C. 577, 58 S.E. 2d 351; S. v. Black, 232 N.C. 154, 59 S.E. 2d 621; Rice v. Trust Co., 232 N.C. 222, 59 S.E. 2d 803; Smith v. Furniture Co., 232 N.C. 412, 61 S.E. 2d 96; Paper Co. v. Sanitary Dist., 232 N.C. 421, 61 S.E. 2d 378; Johnson v. Barham, 232 N.C. 508, 61 S.E. 2d 374; Hoover v. Crotts, 232 N.C. 617, 61 S.E. 2d 705; Weaver v. Morgan, 232 N.C. 642, 61 S.E. 2d 916; Gibson v. Ins. Co., 232 N.C. 712, 62 S.E. 2d 320; Perkins v. Sykes, ante, 147, 63 S.E. 2d 133, and numerous other cases.

In the light of the record, and facts found by the court, the movants,. Mr. and Mrs. Robert K. McGowen, raise two questions, stated in reverse order: (1) Does the Domestic Relations Court of Buncombe County, North Carolina, have jurisdiction over the persons of movants? (2) Does said court have jurisdiction over the child Deanna Blalock, the subject of the action, or proceeding? Both questions are answered in the affirmative.

As to the first question: Jurisdiction over the person of a defendant can be acquired only in two ways: (1) By service of process upon him, whereby he is brought into court against his will; and (2) by his voluntary appearance and submission. 3 Am. Jur. 784. G.S. 1-103.

Coneededly, in the case in hand, process issued to Mr. and Mrs. Mc-Gowen was not served on them. It remains, therefore, to inquire into the effect of their appearance.

An appearance may be either general or special. The distinction between the two is not so much in the manner in which, or the proceeding by which, the appearance is made, as in the purpose and the effect of an appearance. “The test is the relief asked, — the law looking to its substance rather than to its form. If the appearance is in effect general, the fact that the party styles it a special appearance will not change its character. The question always is what a party has done, and not what he intended to do.” Scott v. Life Asso., 137 N.C. 515, 50 S.E. 221; Woodard v. Milling Co., 142 N.C. 100, 55 S.E. 70; Motor Co. v. Reaves, 184 N.C. 260, 114 S.E. 175; Shaffer v. Bank, 201 N.C. 415, 160 S.E. 481; Buncombe County v. Penland, 206 N.C. 299, 173 S.E. 609; see also 3 Am. Jur. 782; McIntosh N. C. R. & P. 323.

A special appearance by a defendant is for the purpose of testing the jurisdiction of the court over his person. Scott v. Life Asso., supra. Motor Co. v. Reaves, supra; Denton v. Vassiliades, 212 N.C. 513, 193 S.E. 737; Williams v. Cooper, 222 N.C. 589, 24 S.E. 2d 484. See also 3 Am. Jur. 782; McIntosh N. C. P. & P. 323.

An appearance merely for the purpose of objecting to the lack of any service of process or to a defect in the process or in the service of it, is a special appearance. In such case the defendant does not submit his person to the jurisdiction of the court. 3 Am. Jur. 783.

On the other hand, a general appearance is one whereby the defendant submits his person to the jurisdiction of the court by invoking the judgment of the court in any manner on any question other than that of the jurisdiction of the court over his person. 3 Am. Jur. 182, 6 C.J.S. 66, McIntosh N. C. P. & P. 323. Scott v. Life Asso., supra; Motor Co. v. Heaves, supra.

A general appearance waives any defects in the jurisdiction of the court for want of valid summons or of proper service thereof. Motor Co. v. Reaves, supra; Bank v. Derby, 215 N.C. 669, 2 S.E. 2d 875; Credit Corp. v. Satterfield, 218 N.C. 298, 10 S.E. 2d 914; Williams v. Cooper, 222 N.C. 589, 24 S.E. 2d 484; Wilson v. Thaggard, 225 N.C. 348, 34 S.E. 2d 140.

Indeed, in Williams v. Cooper, supra, in opinion by Barnhill, J., it is said: “An objection that the court has no jurisdiction of the subject matter of the action is considered in law as taken to the merits and not merely to the jurisdiction of the court over the person of the defendant and an appearance for the purpose of entering such objection is, in fact, a general appearance which waives any defect in the jurisdiction arising either for want of service on the defendants or from a defect therein.” See cases there cited.

Applying these principles to the case in hand, if the movants had, as is said in Motor Co. v. Reaves, supra, confined their motion to dismiss for want of jurisdiction over their persons, all would have been well with them, but when they asked the court to adjudge as to want of jurisdiction over the subject of the action, they converted their special appearance into a general one. It follows, therefore, that the movants have waived any defect in the jurisdiction arising for want of service on them,- — and they are in court. Williams v. Cooper, supra.

This brings us to the second question: As to whether the Domestic Eelations Court of Buncombe County, North Carolina, has jurisdiction over the child, Deanna Blalock, the subject of the proceeding.

The establishment of Domestic Eelations Courts was authorized, and the machinery therefor provided by the General Assembly of 1929. See P.L. 1929, Chapter 343. "While the act as originally passed did not apply to Buncombe County, it was made applicable thereto by an amendatory act — Chapter 208 of P.L. 1941. The act authorizing the establishment of such court, as amended from time to time, became sub-chapter IY of Chapter 7 of General Statutes entitled “Courts.” And the General Statutes became effective 31 December, 1943, and have been in effect since then.

Section 3 of Act of 1929, now G.S. 7-103, provides, among other things, that Domestic Eelations Courts, where established, shall have, and be vested with ¿11 the power, authority, and jurisdiction theretofore vested in tbe juvenile courts of North Carolina, — said power, authority, and jurisdiction being as fully vested in the Domestic Relations Court as if therein particularly set forth in detail; and in addition thereto such Domestic Relations Courts shall have exclusive original jurisdiction over, among others, “(c) all cases involving the custody of juveniles, except where the case is tried in Superior Court as a part of any divorce proceeding.” See In re Morris, 224 N.C. 487, 31 S.E. 2d 539, and S. c., 225 N.C. 48, 33 S.E. 2d 243.

What then are the “power, authority and jurisdiction” given to juvenile courts? The Juvenile Court Act, enacted by the General Assembly of 1919, Chapter 97 of P.L. 1919, later becoming Article 2 of Chapter 90 of the Consolidated Statutes, on the subject “Child Welfare,” and now Article 2 of Chapter 110 of the General Statutes, on the same subject, provides that the Superior Courts shall have exclusive original jurisdiction of any case of a child less than sixteen years of age residing in or being at the time within the respective districts “who are in such condition or surroundings or in such improper or inefficient guardianship or control as to endanger the morals, health, or welfare of such child.” This jurisdiction when obtained in the case of any child shall continue for the purposes of the statute on “Child Welfare” during the minority of the child, unless a court order be issued to the contrary. G.S. 110-21. S. v. Coble, 181 N.C. 554, 107 S.E. 132; In re Coston, 187 N.C. 509, 122 S.E. 183; In re Morris, supra. See also Phipps v. Vannoy, 229 N.C. 629, 50 S.E. 2d 906.

This section of the statute, G.S. 110-21, also imposes upon the court the constant duty to give to each child subject to its jurisdiction such oversight and control in the premises as will conduce to the welfare of such child and to the best interest of the State. In re Morris, supra.

And for the purpose of hearing cases coming within the provisions of the statute the General Assembly established in each county of the State a separate part of the Superior Court of the district, such part to be called “The Juvenile Court” of the particular county, and appointed and authorized the Clerk of Superior Court of each county to act as judge of the Juvenile Court in the hearings of such cases within such county. G.S. 110-23.

The express intention of this statute is “that in all proceedings under its provisions the court shall proceed upon the theory that a child under its jurisdiction is the ward of the State and is subject to the discipline and entitled to the protection which the court should give such child under the circumstances disclosed in the case.” G.S. 110-24.

Moreover, any order or judgment made by the court in the case of any child shall be subject to such modification from time to time as the court may consider to be for the welfare of the child, except in certain cases not pertinent here. G.S. 110-36. In re Morris, supra; see also S. v. Burnett, 179 N.C. 735, 102 S.E. 711; In re Coston, supra.

The procedure for initiating a proceeding and for notice or summons to the parent is prescribed in the statute G.S. 110-25 to G.S. 110-28. And it is also provided that upon the return of the summons or other process, the court shall proceed to hear and determine the case in a summary manner. And that upon such hearing, the court, if satisfied that the child is in need of care, protection or discipline of the State, may so adjudicate, and may find the child to be delinquent, neglected, or in need of more suitable guardianship, and thereupon may, among other provisions, commit the child to the custody of a relative or other fit person of good moral character, subject, in the discretion of the court, to the supervision of a probation officer and the further orders of the court, or render such further judgment or make such further order of commitment as the court may be authorized by law to make in any given case. G.S. 110-29.

In the Coston case, supra, this Court in an opinion by Hoke, J., referring to the Juvenile Court Act, as construed and applied in S. v. Burnett, supra; S. v. Coble, supra, and In re Hamilton, 182 N.C. 44, 108 S.E. 385, had this to say: “From the principles approved in these decisions and in further consideration of the statute and its terms and purpose, it appears that the law primarily conferred upon these juvenile courts the power to initiate and examine and pass upon cases coming under its provisions. That these powers are both judicial and administrative, and when, having acquired jurisdiction, a juvenile court has investigated the case and determined and adjudged that the child comes within the provisions of the law and shall be controlled and dealt with as a ward of the State, this being in the exercise of the judicial powers in the premises, fixes the status of the child, and the condition continues until the child is of age, unless and until such adjudication is modified or reversed by a further judgment of the court itself or by the Superior Court judge hearing the cause on appeal as the statute provides.” See also In re Prevatt, 223 N.C. 833, 28 S.E. 2d 564.

Applying the provisions of the statute as so interpreted by this Court to the facts found by the judge of the trial court, as set forth in the judgment from which this appeal is taken, it clearly appears that the Domestic Relations Court of Buncombe County (standing in the stead of the Juvenile Court), by the proceedings had on the petition of the Carters in March, 1947, fixed the status of Deanna Blalock, as a ward of the State, which condition continues, and will continue until she is of age, unless and until such adjudication be modified or reversed by a further judgment of the court itself or by the Superior Court judge hearing the cause on appeal as the statute provides.

But tbe appellants say, in effect, that whatever jurisdiction the Domestic Relations Court obtained over the child by virtue of the order of that court dated 26 March, 1947, no longer exists for several reasons: First, that the order was terminated by the interlocutory order entered by the Clerk of Superior Court of Buncombe County on 2 September, 1947, in the adoption proceeding instituted by the Carters in that that order was a “court order . . . issued to the contrary” within the meaning of G.S. 110-21. This position is untenable. See opinion by Hoke,, J., in the Coston case, supra. Moreover, the statute expressly declares that the term “court” when used in the Juvenile Courts Act without modification refers to the juvenile courts established as provided therein. G.S. 110-23. See also In re Hamilton, supra; In re Coston, supra; In re Prevatt, supra. And since the “power, authority and jurisdiction” of the juvenile courts, G.S. 7-103, is vested in Domestic Relations Courts, the term “court” would refer to the latter.

On the other hand, a proceeding for adoption of a minor child, under the statute pertaining thereto, Chapter 48 of General Statutes, read in connection with the provisions of G.S. 1-7 and G.S. 1-13, is before the Clerk of Superior Court.

And the statute provides that when all the prescribed conditions satisfactorily appear the court “may tentatively approve the adoption and issue an order giving the care and custody of the child to the petitioner,” and within two years of “the interlocutory order” the court shall complete the proceeding by an order granting letters of adoption, or, in its discretion by an order dismissing the proceeding; that the effect of any adoption so completed shall be retroactive to the date of the application; that during this interval the child shall remain the ward of the court and shall be subject to such supervision as the court may direct; and that the order granting letters of adoption shall state whether for the minority or for the lifetime of such child and shall have the effect forthwith to establish the relation of parent and child between the petitioner and the child. G.S. 48-5.

Here it is noted that the word “tentatively,” as used in this statute, is the adverbial form of the word “tentative” which Webster defines “as of the nature of an attempt, experiment or hypothesis to which one is not finally committed; making trial; testing.”

It is noted also that the order tentatively approving the adoption is denominated “interlocutory order.” Such an order is provisional or preliminary, and does not determine the issues in the action but directs some further proceedings preliminary to a final decree. McIntosh N. C. P. & P., Section 614, p. 686. Johnson v. Roberson, 171 N.C. 194, 88 S.E. 231; Russ v. Woodard, 232 N.C. 36, 59 S.E. 2d 351.

Indeed, an interlocutory order differs from a final judgment in that an interlocutory order is “subject to change by the court during the pen-dency of the action to meet the exigencies of the case.” See Russ v. Woodard, supra, and cases cited.

Thus it appears that the General Assembly has created both Domestic Relations courts and Clerks of Superior Court as separate branches of the Superior Court. To the former is given exclusive original jurisdiction over all eases involving the custody of juveniles, G.S. 7-103, and to Clerks of Superior Courts jurisdiction of proceedings for the adoption of minor children with right, incidental to temporary approval of application for adoption, to “issue an order giving the care and custody of the child to the petitioner.” Chapter 48 of G.S. and G.S. 1-7 and G.S. 1-13.

And for the purpose of learning and giving effect to the legislative intention, all statutes relating to the same subject are to be compared and so construed in reference to each other that effect may be given to all provisions of each, if it can be done by any fair and reasonable interpretation. Alexander v. Lowrance, 182 N.C. 642, 109 S.E. 639.

In the light of this rule of construction, applied to the two statutes now being considered, we regard it clearly the intention of the General Assembly that the Domestic Relations Courts have the exclusive original jurisdiction in all cases of a child coming within the purview of the Juvenile Court Act and the Domestic Relations Court Act, which, when once acquired, and the status of the child is fixed, continues during the minority of the child.

And we regard it equally clear that the provision in the adoption statute that the court (the Clerk), if it be satisfied that the adoption be for the best interests of the child “may tentatively approve the adoption and issue an order giving the care and custody of the child to the petitioner” during the testing period, so to speak, is provisional, and is not intended to oust the jurisdiction of the Domestic Relations Court in a case involving question of custody of such child.

Secondly, appellants contend that since neither the child nor they, styled adoptive parents, are within the bounds of the State of North Carolina, and are in the State of Illinois, the Domestic Relations Court of Buncombe County, North Carolina, is without power to enforce its adjudication which is an essential to jurisdiction. In taking this position appellants lose sight of the fact that the petition filed by the mother is for the modification of an order of the Domestic Relations Court entered in the exercise of exclusive original jurisdiction acquired over both the mother and the child in a proceeding involving the custody of the child. The power to modify such order is expressly granted to the court by statute, G.S. 110-36, referred to hereinabove with citations of pertinent cases. And the question whether under such statute a court may alter or modify its decree as to the custody of tbe children, in the absence of the parent or the child from its territorial jurisdiction, case annotators say, has been resolved, by the great weight of decisions, in favor of the existence of such power in the court. See Annotation 70 A.L.R. 526 of pertinent subject—citing among other cases Hersey v. Hersey, 271 Mass. 545, 171 N.E. 815, 70 A.L.R. 518. See also In re Morris, 225 N.C. 48, 33 S.E. 2d 243.

Indeed, the appellants are now in court. And the cases of In re DeFord, 226 N.C. 189, 37 S.E. 2d 516, and others cited and relied upon by appellants are distinguishable in factual situation.

Thirdly, appellants say “there was no violation of the court order or •court jurisdiction when they took the child to their home, etc.” As to this, attention is directed to the findings of fact made by the trial court and to the statute G.S. 110-52, a section of Article 4 of Chapter 110 of General Statutes, as rewritten by Section 3 of Chapter 609 of 1947 Session Laws of North Carolina, effective 1 July, 1947, which declares that “no child shall be taken or sent out of the State for the purpose of placing him in a foster home or in a' child-caring institution without first obtaining the written consent of the State Board of Public "Welfare . . .” The terms “he” or “his” or “him” used in the statute is made to apply to a female as well as to a male. G.S. 110-56.

Moreover, it is provided in G.S. 110-55, a section of Article 4 of Chapter 110 of General Statutes, that “every person acting for himself or for an agency who violates any of the provisions of this Article . . . shall, upon conviction thereof, be guilty of a misdemeanor and punished by fine of not more than two hundred dollars or by imprisonment for not more than six months, or by both such fine and imprisonment.”

Lastly, while appellants in the statement of facts in their brief, say that the petitioner commenced this proceeding on 13 January, 1950, that they, appellants, first heard of the existence of this proceeding by a letter which was received some time after 7 February, 1950; that upon discovery that the matter had not been concluded in North Carolina, appellants, on 10 March, 1950, filed a petition for adoption of the child under the laws of the State of Illinois in the County Court of Cook County, Illinois, and that a final adoption decree was entered in which facts were found upon which jurisdiction of the Illinois Court was determined; and that appellee had opportunity to raise the question of Illinois jurisdiction, and upon failing so to do is estopped to deny the jurisdiction of that court.

In this connection it is noted that the Illinois Revised Statutes 1947, Chapter 4, pertaining to adoption of children, in Sec. 1-2 provides that the petition for adoption shall state:

“1. The name, if known, the sex, and the place and date of birth of the child sought to be adopted; and

“2. The name, if known, of the person or organization having the legal custody of the child; and

“3. The name, if known, of each of the parents or of the surviving parent of such child; and whether such parent or parents are or is a minor or otherwise under any legal disability; and

“4. That the child has resided in the home of the petitioners at least six consecutive months immediately preceding the filing of the petition, if such is the fact . . .,” and, that “the petition shall be verified by the petitioner.”

In the light of this Illinois statute, while the petition states that the child Deanna Blalock was born at Orossnore, Avery County, North Carolina, on 15 December, 1943, and that Mary Blalock, the mother, is the sole legal parent of said child, there is no disclosure of the facts (1) that the child became a ward of the Domestic Relations Court of Buncombe County, North Carolina, in March, 1947, a proceeding involving question of the custody of the child, and that the mother is moving in said court for modification of order made in March, 1947; (2) nor as to the circumstances under which they, the petitioners-appellants, acquired possession of the child; (3) nor as to the assurances given by them in respect to the child; (4) nor as to their removal of the child from North Carolina without, first, having obtained the consent of the State Department of Welfare of North Carolina, or of any court, — facts found by the trial court in present proceeding. Nor is there allegation of facts which would work a change of the domicile of the child.

Moreover, the judgment of the Illinois court indicates upon inspection that it is predicated upon the facts alleged, and there is no finding in respect of the matters so withheld from the petition.

Hence, we hold that the conclusions of law made by the trial court that the child has never lost her domicile in the State of North Carolina and that the purported adoption of the child in the State of Illinois is void and of no effect, are well founded and proper.

The Conflict of Laws, by Joseph H. Beale, Vol. 1, Chapter 2, on the subject-of Domicile, declares that every person must have a domicile of origin; that this domicile comes into being as soon as the child becomes at birth an independent person; that this domicile is retained until it is changed in accordance with law; that if the child be illegitimate it takes its mother’s domicile, Thayer v. Thayer, 187 N.C. 573, 122 S.E. 307; that there can be no change of domicile without an intention to acquire the new dwelling as a home, or as it is often phrased, without an animus manendi. Hence “an unemancipated infant, being non sui juris, cannot of his own volition, select, acquire, or change his domicile.” Thayer v. Thayer, supra; Duke v. Johnston, 211 N.C. 171, 189 S.E. 504. See also Allman v. Register, post, 531.

Moreover, the Conflict of Laws, supra, Vol. 2, on the subject of adoption, states that jurisdiction to adopt would seem to depend strictly on common domicile of both parties, since the status of both is affected.

A judgment obtained in another State may be challenged in this State by proof of fraud practiced in obtaining the judgment which may have prevented an adverse trial of the issue, or by showing want of jurisdiction either of the subject matter or as to the person of the defendant. See Hat Co. v. Chizik, 223 N.C. 371, 26 S.E. 2d 871, and cases there cited.

For reasons stated, the judgment below is

Affirmed.