Filed 31 August 1973
1. Constitutional Law 26 — foreign judgment — full faith and credit A judgment of a court of one state must be given the same effect in any other state which it has by law or usage in the courts of the state where it was rendered.
2. Constitutional Law 26; Divorce and Alimony 22 — foreign custody decree — full faith and credit — modification for changed circumstances The courts of this State will accord full faith and credit to the custody decree of a sister state which had jurisdiction of the parties and the cause as long as the circumstances attending its rendition remain unchanged; however, when a child whose custody is in dispute comes into this State our courts have jurisdiction to determine whether or not conditions and circumstances have so changed since the entry of the custody decree that the child's best interests will be served by a change of custody. G.S. 50-13.5 (c) (2)a; G.S. 50-13.7 (b).
3. Divorce and Alimony 22 — Georgia custody decree — modification for changed circumstances Since a Georgia court could alter its own child custody decree upon a showing of a change in circumstances adversely affecting the child, a North Carolina court may also modify it upon the same ground.
4. Divorce and Alimony 22 — modification of foreign custody decree — necessity for evidence of conditions when decree entered Since a Georgia child custody decree contained no findings of fact, it was necessary for a North Carolina court to hear evidence with reference to conditions existing at the time the Georgia decree was entered before the court could determine whether changed circumstances justified its modification.
5. Divorce and Alimony 24 — modification of foreign custody decree — emotional stability — sufficiency of evidence and findings In a mother's action to modify a Georgia decree which granted custody of minor children to their maternal and paternal grandparents on the basis that both the mother and father were emotionally disturbed and unstable and that their conduct had been such that neither was then a suitable person to have custody of the children, the trial court's award of custody to the mother was supported by findings supported by competent evidence that (1) the mother is now emotionally stable; (2) she is successfully established in her profession as a speech therapist in a North Carolina community and has an income sufficient to support herself and her children in desirable surroundings; (3) her professional reputation and general character are good; (4) for the five months preceding the hearing plaintiff supported and cared for the children in- a home she provided for them in a good neighborhood; (5) the mother is attending to their schooling, religious education, and social life and is able to be with the children when they are not in school; and (6) she is now a fit and proper person to have custody of the children and is better able to respond to their daily needs than the grandparents.
6. Divorce and Alimony 22 — child custody proceeding — continuing jurisdiction of court Jurisdiction of a court in a child custody proceeding continues as long as a minor child whose custody is the subject of a decree remains within its jurisdiction; upon motion of a party or upon its own motion, after due notice, the court may conduct a hearing to determine whether the decree should be modified.
7. Divorce and Alimony 24 — modification of foreign custody decree — order that trial court review conditions periodically In view of the evidence in this case which dictated a Georgia decree awarding custody of minor children to their grandparents because the parents were both then unfit to have custody, the Supreme Court, in the exercise of its supervisory powers, directs the district court in this State which modified the Georgia decree by awarding custody to the mother to ascertain periodically whether conditions have developed which adversely affect the children's welfare.
ON plaintiff's petition for certiorari to review the decision of the Court of Appeals reversing the judgment in her favor entered by Clifford, District Court Judge, 13 December 1971 Session of the District Court of FORSYTH.
Hudson, Petree, Stockton, Stockton Robinson and White Crumpler for Susan Durham Spence, plaintiff appellant.
Womble, Carlyle, Sandridge Rice for Mr. and Mrs. James Robert Durham (parents of plaintiff).
Hatfield, Allman and Hall by Roy G. Hall, Jr., James W. Armentrout and Wetson P. Hatfield for Ronald Kenneth Spence, Richard T. Spence, and Frances Hawkins Spence, defendant appellees.
Justice HIGGINS concurring.
Justice LAKE dissenting.
Action under G.S. 50-13.7 (b) (1971 Supp.) for custody of minor children.
Plaintiff, Susan Durham Spence, born 11 June 1935, instituted this action on 24 May 1971 to obtain the custody of her two minor daughters, Fay Frances Spence, born 15 June 1962, and Dianna Jeannene Spence, born 5 June 1964. The defendants are Ronald Kenneth Spence, the children's father (Spence); James Robert Durham and wife, Faye M. Durham, the parents of plaintiff (maternal grandparents or Durhams); and Richard T. Spence and wife, Frances H. Spence, the parents of Ronald K. Spence (paternal grandparents). All parties are properly before the court and participated in the proceeding in which the judgment sub judice was rendered.
Plaintiff and her parents are residents of Winston-Salem, Forsyth County, North Carolina. Spence is a resident of the State of Kansas; the paternal grandparents reside in the State of Georgia. The children have been physically present in this State since September 1970.
The following events, stated chronologically insofar as possible, disclose a portion of the background of this controversy:
Plaintiff and Spence met in 1959 at the University of Georgia, from which each obtained a bachelor's degree. Thereafter, on 9 September 1960, they were married in Winston-Salem, North Carolina. In 1961 both enrolled as graduate students at the University of Virginia. There Spence pursued courses in advanced chemistry, and plaintiff studied speech pathology. Spence, who became "disinterested in chemistry," dropped out of school in late 1961 and obtained employment with the Sperry Piedmont Company as an engineering analyst. Plaintiff continued her studies under a scholarship. She obtained the degree of Master of Education in Speech Pathology and Audiology shortly before the birth of her first child, Fay.
In April 1963, after Spence had worked for eighteen months with the Sperry Company, he and plaintiff moved to California. There, for about two years, he was employed by "Lockheed Missiles and Space Company in the field of computers" at Sunnydale. During this period plaintiff's second child was born, and she worked part of the time in a hospital at Mountain View, where the family lived. In May 1965 Spence left Lockheed to work for Univac, a division of Sperry Rand Corporation, in San Diego. In the fall of 1966, with the idea that they might work together, both plaintiff and Spence enrolled in the University of California at San Diego for studies in linguistics. To further his studies Spence gave up his job with Univac in December 1966 and obtained employment at the University of California. Plaintiff worked at the speech and hearing center there from August 1965 until late August 1967, when she left California to teach at the University of Richmond in Virginia.
Plaintiff's move to Richmond was for professional and financial reasons. Her sojourn there was not intended as a separation from Spence, who visited her a number of times in Richmond. At different times between August and December, Spence and the respective grandparents cared for the children. In early December, Spence withdrew from the University of California and went to the home of his parents in Georgia. At that time he delivered the children to plaintiff in Richmond, and they remained with her there until the completion of her contract in June 1968.
From 15 January 1968 until March 1970, when he was "laid off in a mass reduction in force," Spence worked for Lockheed at Smyrna, Georgia. In June 1968 plaintiff and the two children joined Spence in Smyrna, where they shared his one-bedroom "bachelor's apartment," and plaintiff started a private practice in speech therapy. In July 1968 an 18-year-old girl, Linda Preyer, who had kept house for them in San Diego, came to live with plaintiff and Spence in the bachelor's apartment. In the fall plaintiff and the children moved into an adjoining apartment.
On 9 January 1969 Spence brought an action for divorce against plaintiff in the Superior Court of Cobb County, Georgia. On that morning he informed plaintiff that he would vacate his apartment during the day. Plaintiff took the children to school as usual and, at 3:00 p.m., she went for them. She left them in the playroom of her speech and language school, where they were to remain while she saw her last pupil of the day. That task completed she returned to the playroom to find the children gone. It was "days later" before she learned that Spence had taken the children to the home of their paternal grandparents about sixty miles away. Upon inquiry the paternal grandmother had denied that the children were there and that she had any knowledge of their whereabouts.
Plaintiff was not permitted to see the children until after 3 February 1969, when the Georgia court issued a temporary order giving Spence's parents custody of the children pendente lite. That order denied both Spence and plaintiff any access whatever to the children except that each was allowed one two-hour visitation each week in the home of the paternal grandparents.
On 6 February 1969 the maternal grandparents petitioned the court to allow them to intervene in the pending divorce action and were allowed to do so. They prayed that, if the court should conclude neither plaintiff nor Spence was a suitable custodian, the custody of the two children be awarded to them. The paternal grandparents were also permitted to intervene. Thus, the parties to the Georgia proceeding and to this one are the same.
On 2 June 1969, the day the case was scheduled for trial, all parties were present in court and represented by counsel. Plaintiff did not contest Spence's action for divorce, and he obtained an absolute divorce on the grounds of mental cruelty.
On the issue of custody the court heard no evidence. That controversy was determined by a consent judgment, which was signed by the judge and by counsel for all parties. In pertinent part this judgment is summarized below:
1. The court awarded custody of the two children to the paternal grandparents during the months of June, July, and August of each year and to the maternal grandparents during the months of September through May. Plaintiff and Spence were given the right to visit the children in the home of their respective parents without restriction. Each was, however, enjoined from removing the children from the grandparents' homes, and the grandparents were under positive orders to prevent the children's removal. During the school months, when the Durhams had custody, the paternal grandparents had the right to have the children visit in their home during all school holidays. The judgment provided for alternative divisions of custody between the grandparents in the event of the death of one or more grandparents, the final award being to the last surviving grandparent.
2. Both Spence and plaintiff were relieved of all obligation to support their children. Neither maternal nor paternal grandparents were to look to either of them for reimbursement of any sums expended for the maintenance and education of the children. The grandparents having custody were to pay the children's expenses during the time they had them. The Durhams were to send the children to private schools in Winston-Salem, and the grandparents receiving the children at the end of each custody period were to pay the cost of transporting them to their home.
3. Both maternal and paternal grandparents canceled all debts which either plaintiff or Spence owed them.
4. The maternal grandparents were required to give a bond in the sum of $10,000.00 conditioned upon their compliance with the consent judgment and any future orders of the court. The clerk of the Superior Court of Cobb County was appointed process agent for the Durhams in any proceedings regarding the custody of the children and any breach of the terms of the bond.
As directed by the judgment, on 20 June 1969, the Durhams executed and delivered to the Sheriff of Cobb County a compliance bond in the sum of $10,000.00.
Spence testified that within two weeks after he instituted divorce proceedings against plaintiff, on 20 January 1969, he was in touch with Dr. Arlene Gregory, whom he had met in 1955 when she was a premedical student. He had courted her unsuccessfully just before he married plaintiff, "perhaps on the rebound." In July 1969 Spence and Dr. Gregory were married. At that time she had just finished her graduate residency in anesthesiology.
In late August 1969 the Spence children went to the home of the Durhams in Winston-Salem. Except for school holidays, which they spent with the paternal grandparents, the children remained with the Durhams until June 1970 when they returned to Georgia as required by the consent judgment.
In the summer of 1969 plaintiff left Smyrna and went to Rome, Georgia, to become the director of the Northwest Georgia Speech and Hearing Center, a fourteen-county governmental speech pathology and hearing clinic for children and adults. In September 1970 she moved to Winston-Salem to become head of the department of speech pathology at the Medicenter of America's facility there.
In September 1970 the Spence children returned to the home of the Durhams in Winston-Salem for the school year 1970-71.
On 24 May 1971, without the knowledge of her parents, plaintiff brought this action to obtain the custody of her children. On 25 May 1971 she secured from the District Court of Forsyth County an order restraining the removal of the children from Forsyth County pending that court's determination of their custody. In that order the hearing on this question was set for 3 June 1971. MRS. Durham testified that but for the injunction prohibiting her from doing so she would have returned the children to Georgia as she had previously done. Upon receiving the court's order she immediately informed the paternal grandparents of it and returned the travel tickets they had sent the children.
On 3 June 1971 the paternal grandparents and Spence petitioned the Cobb Superior Court to attach the maternal grandparents for contempt and to forfeit their $10,000.00 bond. In that proceeding the Durhams pled, inter alia, the order of the North Carolina court restraining the removal of the children from the State. On 23 August 1971 the Cobb Superior Court held Mr. and Mrs. Durham in contempt, fined them $200.00 each, and forfeited their bond. These orders were affirmed by the Supreme Court of Georgia. See Durham v. Spence, 228 Ga. 525, 186 S.E.2d 723 (1972). Thereafter, on 30 March 1972 the Superior Court of Cobb County ordered the proceeds of the bond paid to the paternal grandparents.
The hearing of the controversy sub judice, originally set for 3 June 1971, was continued at Spence's request and rescheduled for July 20th. On that day Spence again requested a continuance, and the cause was continued indefinitely to a date to be set by the court upon motion of any party to the action. At the same time, however, the court signed an order giving plaintiff temporary custody of the children, and the Durhams surrendered the children to her on 20 July 1971. Since that date they have resided with plaintiff.
At the hearing, which was begun on 29 December 1971, all parties offered evidence with reference to the circumstances and conditions which preceded the separation between plaintiff and Spence. This evidence fully explained the consent judgment of 2 June 1969, which divested both plaintiff and Spence of the custody of their children.
Plaintiff and Spence, neither of whom had testified in the Georgia proceeding, both testified at the hearing before Judge Clifford, and both were extensively cross-examined. The testimony of each with reference to the conduct of the other, and their admissions with reference to their own conduct, disclosed improper behavior on the part of both so extraordinary as to seem incredible. Plaintiff and Spence each denied portions of the other's testimony. However, the admissions of each, together with the corroborative evidence of other witnesses, suffice to establish the existence of a situation in their home in Smyrna during the five months from August through December 1968, which was beyond the pale of the most permissive society. To perpetuate this evidence in our reports would not only be a disservice to "two little girls [who] are very exceptional children," but would perhaps put a stumbling block in the way of their mother's continued restoration. For this reason we omit any discussion of it.
It may be that a conceivable explanation of the conduct of plaintiff and Spence is to be found in the fact that in January 1969 both were in such a state that they were consulting psychiatrists. Spence testified that at the time the consent judgment was entered he was unable to care for his children "in terms of residence" and that "the emotional and psychological turmoil during the previous year" had left him "equally unqualified." At the "strong instance" of his father he was seeing a psychiatrist. Plaintiff testified that, at the same time, she too was consulting a psychiatrist.
Spence's explanation of his behavior was that he "was very much subordinated by Susan's personality"; that she had "a much stronger personality than his in terms of will and ability to persuade." He told the court that he "was acting in response to being dominated by [his] wife," who "was controlling [his] actions to a certain extent," and that "many actions were fully dominated by her." Spence also testified that during the periods in which plaintiff "was not emotionally distressed she was a good mother . . . very concerned for her children's welfare." In his opinion she was disqualified as a custodian only because she was not sufficiently stable over a sufficiently long period of time to guarantee the children "a consistent environment."
Spence's father testified that, in his opinion, in January 1969 neither his son nor plaintiff was a fit person to have control of the children and, for that reason, he had intervened in the custody proceeding; that he thought his son was "showing tremendous improvement" in December 1971, but he still believed himself to be a better custodian than Spence. However, when pressed on cross-examination, he said "Actually there are no defects in Ronnie now"; he is "now a fit and proper person to have custody of the two daughters." Implicit in the testimony of Mr. Spence was the opinion that plaintiff remained unfit to have the children's custody. Plaintiff's mother testified that, in her opinion, plaintiff was the fit and proper person to have the custody and Spence was not; that she had never believed the charges Spence made against her daughter.
In April 1971 Spence went to work as supervisor of programming in the data processing department of the Retail Credit Company in Atlanta, Georgia. He resigned this position in November 1971 to move with his wife to Parsons, Kansas. He testified that she felt she should go to Parsons to care for her invalid twin sister. At accessible schools in Kansas, Spence said he hoped to continue his education and to obtain a PhD degree in the field of linguistics. At the time of the hearing in Forsyth County both he and his wife were unemployed and living off the accounts receivable from her former practice. These, Spence thought, would be sufficient to support him, his wife, their 18-months-old baby, and his two daughters (should he be awarded their custody) until his wife could re-establish a practice and until he could get a PhD and secure a teaching position. In the meantime Spence had no income from any source whatever. However, unless he gets custody himself he does not "want to pay one penny of support for the girls."
Plaintiff testified that she is now a clinical speech pathologist, certified by the American Speech and Hearing Association; that she continues as head of the speech pathology department at the Medicenter's Winston-Salem facility, where she gives therapy to all types of inpatients with speech afflictions; that she also conducts an outpatient clinic in which she gives speech therapy to both children and adults in the entire Forsyth County area and sees patients from Greensboro, Salisbury, High Point, Statesville, and Lexington; that forty-five percent of the patients are children. Spence testified that plaintiff "was a very talented teacher." She has had dramatic successes with many children.
At the time of the hearing plaintiff was residing with the two children "in a very nice two-bedroom, pool-side apartment" on Country Club Road directly across the street from the children's school and the Trinity Methodist Church of which she is an active member. She sings in the choir and participates in all church functions. The children regularly attend Sunday School, sing in the children's choir, and take part in all the youth activities. They are Girl Scouts and do superior work in school. Each morning plaintiff "walks them across the street to school" before she goes to work and returns to pick them up at 3:00 p.m.
In July 1971 plaintiff consulted Dr. David Allen Hill, a clinical psychologist on the faculty of Wake Forest University. He had not previously known her. She informed him of the accusations which had been made against her and which would be made again with reference to her fitness as a custodian of her children and requested him to test and examine her fully. Dr. Hill testified that he warned her that his tests might reflect unfavorably upon her and she replied that "if the test suggested something wrong with her, she'd rather know it." After administering a series of eight tests, Dr. Hill concluded that plaintiff was, "in the ordinary sense of the word, a normal individual," showing "normal female interests in work and hobby and relating to people," and that she enjoyed working with children. He found no evidence of a personality pattern consistent with sexual deviancy, prolonged promiscuity, or peculiar behavior. In his opinion she was not lying; that she attempted to present herself in "as positive and as honest a light as she could."
Dr. Richard C. Proctor, head of the department of psychiatry at the Bowman-Gray School of Medicine testified that in March 1971 he examined plaintiff and, in his opinion, she would be a competent and capable mother, able to assume the responsibility of rearing her children in a satisfactory manner; that one could have had a disorder in 1968 which was not present in 1971; and that he could find no indication of abnormal tendencies in her.
Plaintiff also offered evidence that her character and reputation in the community were good. The minister of Trinity Church, the Reverend Mr. George Bumgarner, testified that since June 1970 he had known plaintiff and observed her with her children; that they had a happy normal relationship and the children seemed well adjusted.
Spence testified that, "pursuant to this case," during 1971 he had employed and paid detectives to observe plaintiff, find out what her circumstances were, and to discover whether she was engaged in any abnormal conduct. These detectives were not tendered as witnesses and did not testify.
The hearing before Judge Clifford lasted for four days. At its conclusion he found facts, the pertinent portions of which, except when quoted, are summarized below:
1. Since 20 July 1971, when plaintiff was awarded temporary custody of the two children, they "have at all times been well, fully, and adequately cared for."
2. Plaintiff is a well educated and intelligent woman who, since moving to Winston-Salem in 1969, has established a successful and growing speech therapy clinic for children and adults. She has rented and furnished an apartment "in one of the better sections of Winston-Salem which is adequate in all respects as a home for herself, Fay and Dianne. Susan Durham Spence is respected in this community by professional people with whom she deals and is a person of high character and reputation. She is an active member of Trinity Methodist Church. . . . She is a person exceptionally well qualified by training and experience to rear children and is in all respects a fit and proper person to have the custody of her two minor children who are subject to this action."
3. Since the two children first came to Winston-Salem in 1969 to live with the Durhams during the school months they "have established excellent associations and records in school." Their best interests require that they live continuously in "their primary environment," and that their custody be awarded to their mother, the plaintiff.
4. Both the maternal and paternal grandparents are fit persons to have custody of the children, but all four grandparents "are of such age that the best interest of the two children will be served by awarding primary custody to their mother."
5. The judge of the Superior Court of Cobb County, Georgia, signed the judgment of 2 June 1969 without having heard any evidence, and he made no findings of fact in support of the court's award of custody to the grandparents.
6. The contention of the defendants Spence, stated in open court, is "that at the time of the entry of the Cobb County judgment Susan Durham Spence was not a fit and proper person to have custody of Fay and Dianne."
7. Irrespective of justification for the Cobb County judgment "there have been substantial changes in the conditions since 2 June 1969 which dictate that the said order be altered." Among these changes are the following:
a. Plaintiff, Susan Durham Spence, is now a fit and proper person to have the custody of her children.
b. On 2 June 1969 plaintiff was highly emotional in consequence of the abduction of her children on 9 January 1969 and deprivation thereafter of the right to see them alone. Today she is "a well-adjusted, emotionally stable individual, fully capable of caring for and rearing Fay and Dianne."
c. The two girls are now older and at an age when they have greater need of a mother's care and attention. The grandparents are not as able to respond to the children's needs as they were in 1969, and the burden and expense of their care and support should no longer be imposed upon them.
d. Spence has become the father of an illegitimate child. He has remarried and fathered a legitimate child, moved with his wife and their child to Kansas. He is unemployed and living on the accounts receivable of his present wife, who is also unemployed.
e. Plaintiff has an established profession and home and has made a place for herself in the community where she is able to care for herself and her children adequately. Her routine and schedule is such that she can be with them the greater part of the time they are not in school.
Upon the foregoing findings of fact the court concluded:
(1) The courts of this State are not bound by the Georgia judgment entered in Cobb County on 2 June 1969; and
(2) In the event the Georgia judgment is entitled to full faith and credit, the conditions surrounding the parties have changed so substantially that the best interests of the children require the judgment be altered by awarding their custody to their mother. Whereupon the court awarded the exclusive care, custody, and control of the children to plaintiff, granting Spence and the paternal grandparents the right to visit the children in North Carolina at reasonable intervals.
From this judgment Spence and the paternal grandparents appealed to the Court of Appeals. That court held (1) that Judge Clifford erred in his ruling that the Georgia judgment was not entitled to full faith and credit, but (2) that he had correctly concluded the courts of this State have jurisdiction to enter orders providing for the custody of minor children physically present in this State and, upon a showing of changed conditions, to modify any order for custody made by the court of another state. G.S. 50-13.5 (c) (2)a (1971 Supp.) and G.S. 50-13.7 (b). The Court of Appeals then disposed of the case as follows: "It suffices to say that the evidence does not support the findings of fact and that the findings of fact do not support the judgment. The judgment of the Superior Court of Cobb County, Georgia, remains in full force and effect. The judgment and orders of the District Court of Forsyth County purporting to modify the same are reversed." See Spence v. Durham, 16 N.C. App. 372, 191 S.E.2d 908 (1972).
Plaintiff petitioned this Court for certiorari, and we allowed the petition.
The general rule is that, under the full faith and credit clause of the United States Constitution (art. IV, 1), a judgment of a court of one state must be given the same effect in any other state which it has by law or usage in the courts of the state where it was rendered. Ford v. Ford, 371 U.S. 187, 9 L.Ed.2d 240, 83 S.Ct. 273 (1962); 47 Am. Jur.2d Judgments 1219, 1226 (1969). "The Supreme Court of the United States, however, has not yet declared in positive terms that the provisions of a foreign divorce decree relating to custody are entitled to full faith and credit where the divorce court had jurisdiction in personam of both spouses or of both parties and the child." 24 Am. Jur.2d Divorce and Separation 998, at 1136 (1966). See generally Ford v. Ford, supra; Kovacs v. Brewer, 356 U.S. 604, 2 L.Ed.2d 1008, 78 S.Ct. 963 (1958); May v. Anderson, 345 U.S. 528, 97 L.Ed. 1221, 73 S.Ct. 840 (1953); Halvey v. Halvey, 330 U.S. 610, 91 L.Ed. 1133, 57 S.Ct. 903 (1947).
It is widely held by state courts, however, "that child custody awards by courts of sister states are entitled to full faith and credit." Annot., 35 A.L.R.3d 520, 538 (1971). Our own decisions establish that the courts of this State will accord full faith and credit to the custody decree of a sister state which had jurisdiction of the parties and the cause as long as the circumstances attending its rendition remain unchanged. However, when a child whose custody is in dispute comes into this State our courts have jurisdiction to determine whether or not conditions and circumstances have so changed since the entry of the custody decree that the child's best interests will be served by a change of custody. G.S. 50-13.5 (c) (2)a; G.S. 50-13.7 (b). See In re Marlow, 268 N.C. 197, 150 S.E.2d 204 (1966); In re Craigo, 266 N.C. 92, 145 S.E.2d 376 (1965); Cleeland v. Cleeland, 249 N.C. 16, 105 S.E.2d 114 (1958); Richter v. Harmon, 243 N.C. 373, 90 S.E.2d 744 (1956).
In both Georgia and North Carolina a decree awarding the custody of minor children determines only the present rights of the parties under the conditions then existing; it is not permanent in its nature and is subject to judicial alteration or modification upon any change of circumstances substantially affecting the welfare of the children. Shepherd v. Shepherd, 273 N.C. 71, 159 S.E.2d 357 (1968); Wilson v. Wilson, 269 N.C. 676, 153 S.E.2d 349 (1967); Thomas v. Thomas, 259 N.C. 461, 130 S.E.2d 871 (1963); Hardee v. Mitchell, 230 N.C. 40, 51 S.E.2d 884 (1949); Holmes v. Holmes, 211 Ga. 827, 89 S.E.2d 194 (1955); Fortson v. Fortson, 195 Ga. 750, 25 S.E.2d 518 (1943). The rule is that the welfare of the child whose custody is in controversy is "the polar star by which the courts must be guided in awarding custody."
The Supreme Court of the United States has specifically held that where the court of one state is empowered to alter its own custody decree upon a showing of a change in circumstances affecting the question, the courts of another state may also modify it upon the same grounds. Ford v. Ford, supra; Kovacs v. Brewer, supra; Halvey v. Halvey, supra. Since the Georgia court could alter its decree upon a showing of a change in circumstances adversely affecting the children no question of the right of the North Carolina court to do so can arise.
We do not deem it necessary to consider the question (discussed in the briefs) whether a consent judgment fixing custody, rendered by the court of a sister state which failed to conduct adversary proceedings and inquire into the circumstances affecting the child, is entitled to full faith and credit. See Annot., 35 A.L.R.3d 520, 560 (1971); 24 Am. Jur.2d Divorce and Separation 819 (1966).
Certainly it is the court's duty to award custody in accordance with the best interests of the child, and no agreement, consent or condition between the parents can interfere with this duty or bind the court. In re Burton, 257 N.C. 534, 126 S.E.2d 581 (1962); Thomas v. Thomas, 248 N.C. 269, 103 S.E.2d 371 (1958); 3 Strong, N.C. Index 2d, Divorce and Alimony 22, 24 (1967). However, an agreement between the parties with reference to custody which is accepted by the court and incorporated in its decrees, is "none the less a judgment of the court, having the usual attribute[s] of conclusiveness." Fortson v. Fortson, 195 Ga. 750, 754, 25 S.E.2d 518, 522 (1943). See also Bunn v. Bunn, 262 N.C. 67, 136 S.E.2d 240 (1964).
We do not assume that the Superior Court of Cobb County, Georgia, entered its judgment in this case "casually, pursuant to an agreement of the parties and without a true, judicial consideration of the facts." 24 Am. Jur.2d Divorce and Separation 819 (1966). On the contrary, we assume the judge was apprised of the evidence the parties were prepared to offer and agreed with them that the custody decree which he signed was, at that time, in the best interests of the children and their parents. Since the decree contained no findings of fact — purposely omitted, we are certain — it was necessary for the Forsyth District Court to hear evidence with reference to conditions existing at the time the Georgia decree was entered before it could evaluate the controversy and determine whether changed circumstances justified its modification. 24 Am. Jur.2d Divorce and Separation 819 (1966). See also Annot., 35 A.L.R.3d 520, 560 (1971).
Spence and the paternal grandparents, appellees in this court, concede that the District Court of Forsyth had authority to change the Georgia custody decree upon a showing of changed circumstances. However, they contend, "(1) The plaintiff failed to show a change of circumstances because she did not offer any proof of what the circumstances were at the time the Georgia order was entered. . . . (2) The facts cited as justification for her having custody are irrelevant, insubstantial, and feathery. . . ." Since the greater part of the testimony covering 359 pages of the record was aimed at establishing the situation which existed at the time the Georgia decree was entered, there is no merit in appellees' first contention. We proceed on the assumption that the Georgia court was of the opinion that both Spence and plaintiff were emotionally disturbed and unstable, and their conduct had been such that neither was then a suitable person to have custody of the children. We can think of no other reason for the judgment the court entered.
The crucial question presented by this appeal is whether the Court of Appeals erred in holding that the record contains no evidence sufficient to support Judge Clifford's finding that plaintiff is now a fit and proper person to have the custody of her children and, in their best interest, custody should now be awarded to her. If the facts which the trial judge found are supported by competent evidence they are binding on the appellate division. Teague v. Teague, 272 N.C. 134, 157 S.E.2d 649 (1967); Hinkle v. Hinkle, 266 N.C. 189, 146 S.E.2d 73 (1966); Griffin v. Griffin, 237 N.C. 404, 75 S.E.2d 133 (1953).
We hold that competent evidence supports Judge Clifford's findings that (1) plaintiff is now emotionally stable; (2) she is successfully established in her profession in Forsyth County and surrounding areas and has an income sufficient to support herself and her children in desirable surroundings; (3) her professional reputation and her general character are good; (4) for the five months preceding the hearing plaintiff supported and cared for the children in a home she had provided for them in a good neighborhood; (5) plaintiff is attending to their schooling, religious education, and social life and has arranged her affairs so that she is able to be with the children when they are not in school; (6) she is now a fit and proper person to have the care and custody of her children, better able to respond to their daily needs than the grandparents, and that the children's best interests require that their custody be awarded to her. Certainly these findings are sufficient to support the district court's judgment.
Nothing in this record leads us to believe that the children's best interest requires their custody to be awarded to Spence. Indeed, we are left with the impression that Spence himself is not seriously seeking the custody of his children; that his efforts are in behalf of his parents. Unemployed and living off his present wife's accounts receivable, he has started a new family and he is also under obligation to another child. Although prior to their separation the conduct of both plaintiff and Spence was inexplicable and not to be condoned, plaintiff's ability to complete an undertaking and her record of accomplishment are more impressive than his. Plaintiff has come far since 9 January 1969. Spence also has improved. However, it is plaintiff who has provided a special place for her children and is presently caring for them in the best tradition of a mother.
In 2 Nelson, Divorce and Annulment 15.09, at 226-29 (2d ed. 1961), it is said: "It is universally recognized that the mother is the natural custodian of her young. . . . If she is a fit and proper person to have the custody of the children, other things being equal, the mother should be given their custody, in order that the children may not only receive her attention, care, supervision, and kindly advice, but also may have the advantage and benefit of a mother's love and devotion for which there is no substitute. A mother's care and influence is regarded as particularly important for children of tender age and girls of even more mature years."
The trial judge obviously concluded that plaintiff had overcome her emotional problems since her separation from Spence and that the accusations made against her, if once true, were no longer valid. He found, upon supporting evidence, that she is now a stable, fit, and suitable custodian of her children, and their best interests require that their custody be awarded to her. On this record we affirm his award of custody. However, as Justice Frankfurter noted in his dissenting opinion in Kovacs v. Brewer, supra, changes in the fitness of custodians and their ability to provide for the needs of a child may develop rapidly. For that reason the jurisdiction of the court to protect infants is "broad, comprehensive, and plenary." Latta v. Trustees of the General Assembly of the Presbyterian Church, 213 N.C. 462, 469, 196 S.E. 862, 866 (1938). It is also continuing as long as a minor child whose custody is the subject of a decree remains within its jurisdiction. Upon motion of a party, or upon its own motion, after due notice the court may conduct a hearing to determine whether the decree should be modified. In re Morris, 225 N.C. 48, 33 S.E.2d 243 (1945); Godfrey v. Godfrey, 228 Or. 228, 364 P.2d 620 (1961); Lawson v. Lawson, 278 Ky. 602, 129 S.W.2d 135 (1939).
In view of the evidence in this case which dictated the drastic decree by the Georgia court in 1969, we believe that the district court's obligation to these children requires it to ascertain periodically whether conditions adversely affecting their welfare have developed. In the exercise of our supervisory powers, we so direct.
This cause is returned to the Court of Appeals to the end that it be remanded to the District Court of Forsyth County with directions (1) that at least every six months it obtain from the appropriate social service department of the county a report, made after due investigation, as to the children's condition, surroundings, and progress and also as to the plaintiff's status and condition and the manner in which she is caring for the children; and (2) that it furnish a copy of each of these reports to each party to this proceeding. Except as thus modified the judgment of the district court will be affirmed. The decision of the Court of Appeals is reversed.