Opinion
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.
Welling, Miller, Gertzman and Goldfarb by Charles M. Welling for respondent appellant.
Hasty and Kratt by John H. Hasty for petitioner appellee.
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 Mecklenburg 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 appellee, 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 assigning numerous errors in the proceeding before Judge Arbuckle.
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.