Holbrook v. Holbrook

247 S.E.2d 923 (1978)

38 N.C. App. 303

H. Howard HOLBROOK, Jr. v. Verna D. HOLBROOK.

No. 7821DC3.

Court of Appeals of North Carolina.

October 17, 1978.

*925 Harold R. Wilson, Winston-Salem, for plaintiff.

Tate & Bretzmann by C. Richard Tate, Jr., High Point, for defendant.

BROCK, Chief Judge.

By her second assignment of error, defendant-wife challenges the court's finding of fact that plaintiff-husband was a resident of Forsyth County at the time he commenced his divorce and custody action. The findings of the court as to the residence of the parties are conclusive, however, when supported by any competent evidence. Doss v. Nowell, 268 N.C. 289, 150 S.E.2d 394 (1966); Howard v. Queen City Coach Co., 212 N.C. 201, 193 S.E. 138 (1937); Clarke v. Clarke, 15 N.C.App. 576, 190 S.E.2d 390 (1972). The findings made by the judge in this instance with respect to plaintiff-husband's residence are fully supported by the evidence that was presented. Defendant-wife's second assignment of error is overruled.

In two other assignments of error, defendant-wife contends: (1) that the court erred in hearing any evidence and ruling on the question of plaintiff-husband's residence because that issue had already been ruled on in the denial of plaintiff-husband's special appearance motion made in the custody action filed by defendant-wife in Guilford County, and (2) that the court erred when it concluded as a matter of law that it had exclusive jurisdiction over any custody action brought by the parties. Although defendant-wife is correct in her assertion that the Forsyth County Court heard evidence on and decided the same issue as had been decided in her Guilford County custody action, it is clear that the Court did not err in doing so. G.S. 50-13.5 sets forth the procedures to be followed by the courts in all custody actions. Subsection (f) of that section sets forth certain venue provisions applicable to such actions. It provides: "An action or proceeding in the courts of this State for custody and support of a minor child may be maintained in the county where the child resides or is physically present or in a county where a parent resides, except as hereinafter provided." The first proviso reads: "If an action for annulment, for divorce, either absolute or from bed and board, or for alimony without divorce has been previously instituted in this State, until there has been a final judgment in such case, any action or proceeding for custody and support of the minor children of the marriage shall be joined with such action or be by motion in the cause in such action." (Emphasis added.) In Kennedy v. Surratt, 29 N.C.App. 404, 224 S.E.2d 215 (1976), we held that when a divorce action has been filed in one county, and there has not been a final judgment in that action, the courts of another county are, by virtue of the proviso in G.S. 50-13.5(f) quoted supra, "without jurisdiction to entertain an independent action for custody of the minor children of the parties." Id. at 406, 224 S.E.2d at 216. Because the divorce action in this case was properly filed in Forsyth County District Court by plaintiff-husband, the courts of any other county were subsequently without jurisdiction to consider an independent action for custody. Conversely, the Forsyth County Court attained exclusive jurisdiction of any action or proceeding for the custody and support of the parties' child until the entry of a final judgment in the action. Therefore, the District Court in Guilford County did not have jurisdiction to consider defendant-wife's independent custody action or any matters arising therein. "When a court decides a matter without the court's having jurisdiction, then the whole proceeding is null and void, i. e., as if it had never happened." Hopkins v. Hopkins, 8 N.C.App. 162, 169, 174 S.E.2d *926 103, 108 (1970). (Citations omitted.) Although the Guilford County Court did hear evidence and rule on the issue of plaintiff-husband's residence on 6 May 1977, it was without jurisdiction to do so, and the Forsyth County Court did not err by hearing evidence and ruling on the same issue.

Defendant-wife also contends the court erred in ruling on her motion to consolidate the Forsyth County action with the Guilford County custody action and her motion to stay all proceedings pending the outcome of plaintiff-husband's appeal from the ruling on his motions made in the Guilford County action. Defendant-wife contends that the court failed to exercise discretion in ruling on those motions. We find this assignment of error to be without merit. Judge Keiger's order reveals that he clearly understood his authority to rule on the motions in question was a matter within his discretion, that he heard and considered all of the evidence for the plaintiff, and that only after doing so did he rule on the motions.

Affirmed.

CLARK and ARNOLD, JJ., concur.