Neighbors v. Neighbors, 236 N.C. 531 (1952)

Nov. 19, 1952 · Supreme Court of North Carolina
236 N.C. 531


(Filed 19 November, 1952.)

1. Courts § 5—

No appeal lies from one Superior Court Judge to another, and ordinarily one Superior Court Judge may not modify, overrule, or change the judgment of another Superior Court Judge previously made in the same action.

2. Same: Divorce and Alimony § 20%—

While provisions of a decree awarding custody of the minor children of the marriage is subject to modification upon a change of circumstances affecting the welfare of the children, where there had been no such change, another Superior Court Judge may not modify the provisions of the decree theretofore entered in the cause.

Appeal by defendant from Sharp, Special Judge, August 1952 Special Term, JohNStoN.

Civil action for divorce from bed and board and for support, maintenance and custody of children.

Tbe action was commenced by tbe issuance of summons on 27 October, 1950. Plaintiff filed a complaint alleging as her cause of action tbat tbe defendant bad violated tbe provisions of G-.S. 50-7, and asking for custody of tbe children of the marriage. Tbe defendant answered denying generally tbe basic allegations upon which plaintiff’s cause of action was laid and requested tbat be be awarded tbe custody of tbe children. Four children were born of tbe marriage, one of which was over 18 years of age at tbe time tbe suit was instituted and another bas reached tbe age of 18 years since tbat time, so tbat tbe custody of only two children is involved in this appeal.

Tbe cause first came on for bearing before Judge W. TL S. Burgwyn, who made an order on 16 January, 1951, requiring tbe defendant to *532make certain payments for tbe support and maintenance of the three children who were then under 18 years of age and dividing the custody of said children between the litigants.

The matter came on again for hearing at the June Term, 1952, before Judge W. C. Harris, who, upon a proper showing that since the order of Judge Burgwyn the plaintiff had established a residence in the State of Florida, thereby creating a substantial change in the conditions affecting the welfare of said children, signed an order in which it was ordered and adjudged “that the said children shall remain within the State of North Carolina in the custody of the defendant until such time as the plaintiff returns to North Carolina and makes her home within the State of North Carolina, and the plaintiff is hereby ordered and directed not to remove or take said children outside the boundaries of the State of North Carolina so long as she continues to reside and make her home in Florida or at any other place outside North Carolina.” To this order, there was no exception made and from it, no appeal taken.

Thereafter, on 29 August, 1952, the plaintiff filed a motion requesting “that the Order made in this cause at the June 1952 Term of this Court be modified to the extent that plaintiff may be permitted to have custody of her children at her home in the State of Florida upon such terms and conditions as the Court may direct.” It is admitted in plaintiff’s brief that in said motion “there was no allegation that there were any changes in the conditions affecting the welfare of the children which had occurred since Judge Harris’ order was entered in June.”

Plaintiff’s motion was heard at the August 1952 Special Term by Judge Susie Sharp, who made and entered an order, the pertinent part of which is as follows: “It is therefore ordered, adjudged and decreed that the plaintiff, Mrs. Ruth J. Neighbors, be, and she is hereby given custody of the said minor children, Jenny Lynn Neighbors and Howard S. Neighbors, Jr., and is permitted to remove them to the State of Florida; . . .” This order provided that the plaintiff execute a bond in the sum of $3,000 conditioned that “she shall be and remain amenable to the further orders of the Court in this matter and that she shall produce the said children in Court in North Carolina upon the order of the Court.”

From the order of Judge Sharp the defendant excepted and appealed, assigning error.

J. B. Barefoot for plaintiff, appellee.

Wellons, Martin -& Wellons for defendant, appellant.


It is well established in this jurisdiction that no appeal lies from one Superior Court judge to another. Phillips v. Ray, 190 N.C. 152, 129 S.E. 177; Wellons v. Lassiter, 200 N.C. 474, 157 S.E. *533434; Revis v. Ramsey, 202 N.C. 815, 164 S.E. 358; S. v. Lea, 203 N.C. 316, 166 S.E. 292; S. v. Oil Co., 205 N.C. 123, 170 S.E. 134; Fertilizer Co. v. Hardee, 211 N.C. 56, 188 S.E. 623; Rail v. Hawkins, 211 N.C. 283, 189 S.E. 774. Nor, does one Superior Court judge have tbe power to overrule or reverse tbe judgment of another Superior Court judge previously made in tbe same action, except in certain well-defined cases. Roulhac v. Brown, 87 N.C. 1; Henry v. Hilliard, 120 N.C. 479, 27 S.E. 130; Price v. Insurance Co., 201 N.C. 376, 160 S.E. 367; Newton v. Mfg. Co., 206 N.C. 533, 174 S.E. 449; Davis v. Land Bank, 217 N.C. 145, 7 S.E. 2d 373; In re Adams, 218 N.C. 379, 11 S.E. 2d 163; Bank v. Daniel, 218 N.C. 710, 12 S.E. 2d 224.

One of tbe exceptions to tbis rule is a decree awarding tbe custody of minor cbildren. Sucb a decree determines only tbe present rights with respect to sucb custody and is subject to judicial alteration or modification upon a change of circumstances affecting tbe welfare of the cbildren. In re Means, 176 N.C. 307, 97 S.E. 39; Hardee v. Mitchell, 230 N.C. 40, 51 S.E. 2d 884.

Plaintiff’s brief admits that there is no allegation of a change of circumstances adversely affecting tbe welfare of tbe cbildren involved in tbis litigation since tbe order of Judge Harris.. It appears that tbe facts justify and tbe record supports that admission. It is true tbe defendant has suffered a heart attack, but tbis occurred on 11 February, 1952, which was prior to tbe order of Judge Harris. Tbe defendant’s physical condition was evident at tbe time that order was entered and tbe only change since that time has been an improvement.

There appear no grounds sufficient to justify tbe order appealed from and for that reason tbe same must be