DuBose v. Reece, 21 N.C. App. 99 (1974)

March 6, 1974 · North Carolina Court of Appeals · No. 7421DC114

21 N.C. App. 99

VIVIAN DuBOSE v. JAMES MICHAEL REECE

No. 7421DC114

(Filed 6 March 1974)

Divorce and Alimony § 22— child custody — sufficiency of complaint

Plaintiff’s complaint seeking to obtain custody of two children born of her marriage to defendant was sufficient to state a claim for relief.

Appeal by plaintiff from Clifford, District Judge, 13 August 1973 Session of District Court held in Forsyth County.

Plaintiff instituted this action for custody of two children born of her marriage to defendant. Before hearing any evidence, the court entered an order dismissing the action for failure to state a claim upon which relief could be granted.

White and Crumpler by Fred G. Crumpler, Jr., Michael J. Lewis and Melvin F. Wright, Jr., for plaintiff appellant.

Wilson and Morrow by John F. Morrow, for defendant ap-pellee.

VAUGHN, Judge.

The complaint gives defendant sufficient notice of the nature and basis of plaintiff’s claim to enable him to answer and prepare for trial. In fact, defendant had filed answer and an order had been entered directing an investigation by the Family Service Division of the Court. The complaint shows no insurmountable bar to the relief sought by plaintiff. It was, therefore, error to dismiss the action. Sutton v. Duke, 277 N.C. 94, 176 S.E. 2d 161. The order from which plaintiff appealed is vacated and the case is remanded.

Vacated and remanded.

Judges Britt and Parker concur.