Edwards v. Butler

The rights of the parties to this controversy have become embogged in a procedural quagmire. As a result, we have the anomalous situation in which petitioner, in his answer to the Wilson County divorce action, pleads respondents departure from his home in Albemarle on 21 September 1965 as an abandonment which defeats her suit, while the judge presiding in Stanly County denies her motion to dismiss the habeas corpus proceeding pending there because no resumption of marital relations has been shown. It would seem that an unconditional, bona fide resumption of marital relations, if such has occurred, would have vacated any order of custody then in force. Certainly it would destroy the status which, in the beginning, gave the court jurisdiction to issue the writ under G.S. 17-39. See Hester v. Hester, 239 N.C. 97, 79 S.E.2d 248. We need not, however, pick our way through the procedural quicksands to reach that problem because, in limine, we are here confronted by this question: Was the custody jurisdiction which the Superior Court of Stanly County had previously acquired under G.S. 17-39 ousted by the institution of the divorce action in the Superior Court of Wilson County? In pertinent part, G.S. 17-39 provides: