Appeal by defendant from Tate, Judge. Orders dated 20 July 1978 and 15 August 1978 entered in District Court, Catawba County. Heard in the Court of Appeals 20 August 1979.
Parker, Judge. Chief Judge Morris and Judge Martin (Harry C.) concur.
On this appeal defendant contends that, since the district court in the Burke County divorce action had awarded custody of the child to her, the district court in Catawba County thereafter lacked jurisdiction to inquire into the matter. We do not agree either with her major premise that the district court in the Burke
County divorce action had actually made a judicial determination as to custody of the child or with her conclusion that the Catawba County court lacked jurisdiction to make such a determination in this action.
The procedure in actions for custody or support of minor children is governed by G.S. 50-13.5. Subsection (b) of G.S. 50-13.5 prescribes the types of actions which may be maintained to obtain custody or support, and subdivision (1) of that subsection provides that such an action may be maintained "[a]s a civil action."
Subsection (f) of G.S. 50-13.5 provides for the proper venue for the actions allowed under G.S. 50-13.5(b). Insofar as pertinent to the question presented by this appeal, G.S. 50-13.5(f) provides:
(f) Venue. -- An action or proceeding in the courts of this State for custody and support of a minor child may be maintained in the county where the child resides or is physically present or in a county where a parent resides, except as hereinafter provided. If an action for annulment, for divorce, either absolute or from bed and board, or for alimony without divorce has been previously instituted in this State, until there has been a final judgment in such case, any action or proceeding for custody and support of the minor children of the marriage shall be joined with such action or be by motion in the cause in such action.
In the present case, both parties and their child reside in Catawba County.
Speaking of G.S. 50-13.5, Professor Lee in his authoritative treatise on North Carolina Family Law said:
Except for the limited instances set forth in the second sentence of N.C. Gen. Stat. § 50-13.5(f), the jurisdiction over custody and support of a minor child does not, as formerly, automatically become a concomitant of a divorce action and vest in that court a continuing and an exclusive jurisdiction to determine matters of custody and support of minor children . . . . This provision [referring to the second sentence of G.S. 50-13.5(f)] merely prohibits the bringing of any action or proceeding for the custody and the support of a minor child while a previously instituted action for annulment, divorce, or alimony without divorce is pending.
3 Lee, North Carolina Family Law, 3d ed., 1976 Cumulative ...