In re the Custody of Hopper, 9 N.C. App. 730 (1970)

Nov. 18, 1970 · North Carolina Court of Appeals · No. 7026DC637

9 N.C. App. 730

In the Matter of the Custody of CYNTHIA DIANE HOPPER, a Minor Child, and EUGENE THOMAS HOPPER, JR., a Minor Child

No. 7026DC637

(Filed 18 November 1970)

Courts § 11.1; Divorce and Alimony § 22— child custody proceeding in superior court — modification of order by district court — cause not transferred to district court

The district court had no authority to modify a child custody order entered in the superior court where the cause was pending in the superior court when district courts were established in the county, and no order has been entered in the superior court transferring the cause to the district court pursuant to G.S. 7A-259, nor has a motion to transfer been made pursuant to G.S. 7A-258.

Appeal by respondent from Arbuckle, District Judge, 20 July 1970 Session of Mecklenburg County District Court.

A detailed recital of the facts could serve no useful purpose in the light of our disposition of the appeal. This proceeding was instituted on 10 April 1967 in the Superior Court of Meck-lenburg County. On 25 August 1967 Judge Hasty entered an order awarding custody of two minor children of the parties to their mother, the appellant here. Subsequently district courts were established in Mecklenburg County. On 30 June 1970 appel-lee, the father of the children, filed a motion in the cause seeking a modification of Judge Hasty’s order. On 29 July 1970 District Court Judge Arbuckle entered an order which modified Judge Hasty’s order and placed the children in the custody of their father. The mother appealed to this Court asigning numerous errors in the proceeding before Judge Arbuckle.

Welling, Miller, Gertzman and Goldfarb by Charles M. Welling for respondent appellant.

Hasty and Kratt by John H. Hasty for petitioner appellee.

VAUGHN, Judge.

This proceeding was pending in the Superior Court of Mecklenburg County when district courts were established in that district. There has been neither an order entered in the superior court transferring it to the district court division pursuant to G.S. 7A-259 nor a motion therefor under G.S. 7A-258. The district court judge was, therefore, without authority to modify the order of the superior court. Hodge v. Hodge, 9 N.C. App. 601, 176 S.E. 2d 795.

Several of the appellant’s assignments of error have merit and would compel us to reverse the order appealed from if we dealt with the appeal on its merits. Since they may not recur, we will refrain from discussing them.

The order appealed from is hereby vacated and the cause is remanded to the Superior Court of Mecklenburg County.

Vacated and Remanded.

Judges Campbell and Britt concur.