{
  "id": 8550882,
  "name": "IN THE MATTER OF: THE CUSTODY OF ROBERT REGINALD ROSE, ELVIN HENRY ROSE and ALEXANDER ROSE",
  "name_abbreviation": "In re the Custody of Rose",
  "decision_date": "1970-09-16",
  "docket_number": "No. 7019SC417",
  "first_page": "413",
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  "last_updated": "2023-07-14T14:50:15.842675+00:00",
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    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Brock and Morris, JJ., concur."
    ],
    "parties": [
      "IN THE MATTER OF: THE CUSTODY OF ROBERT REGINALD ROSE, ELVIN HENRY ROSE and ALEXANDER ROSE"
    ],
    "opinions": [
      {
        "text": "Graham, J.\nThrough his first assignment of error appellant contends that the court abused its discretion in granting custody of the children to the mother. This assignment of error is overruled. There is plenary evidence to support the court\u2019s findings which support its conclusion that the mother is a fit and proper person to have custody of the children and that it would in their best interest that custody be vested in her.\nMuch of the evidence presented at the hearing indicates that the father\u2019s conduct with respect to the children was anything but exemplary. On 3 April 1969 the father and a cousin, a professional bail bondsman from Asheboro, took the children from their home in California and brought them to North Carolina without the mother\u2019s knowledge and consent. At that time the mother and father were living together and the mother was supporting the children and partially supporting the father who was recovering from a back operation. At no time was the mother notified of the whereabouts of the children or of their health and well-being. When she came to Asheboro in June of 1969 in search of the children, the same cousin who assisted in bringing the children to North Carolina had her arrested for trespassing. The record does not show that she was prosecuted. The mother was frustrated in her attempt to have her application for habeas corpus served, although the father was living and working in Randolph County. An inference arises from the evidence that the father and his bondsman cousin knew that the sheriff had papers which he was attempting to serve on the father. Despite her exhaustive efforts, the mother was unable to see her children from 3 April 1969 until the matter came on for hearing over a year later \u2014 and then only for a short period in the office of the father\u2019s attorney, with the father, the bondsman cousin, and another cousin of the father standing just outside the door. The children, who had been devoted to their mother before they were taken from her custody, kicked her when they saw her for the first time in over a year and told her to \u201c [g] et out of here. We don\u2019t want you.\u201d This was in the presence of the father who stood idly by and did not remonstrate with the children concerning their conduct toward the mother. The father denied that he had done anything to alienate the children toward their mother during the year they had been under his exclusive care. The record strongly suggests the contrary. Fortunately, after only a few brief moments with their mother, the hostility of the children toward her disappeared. The evidence would have supported a finding that the father violated a California court order in removing the children from that State.\nAppellant\u2019s second assignment of error is based on an exception to the language of the order which provides that the mother shall have the \u201cpermanent\u201d care, custody and tuition of the children. His argument is that the court exceeded its jurisdiction by awarding \u201cpermanent\u201d custody. It is elementary that court decrees in child custody and support matters are not permanent in character and may be modified by the court in the future if subsequent events and the welfare of the child require. G.S. 50-13.7 (a); Shepherd v. Shepherd, 273 N.C. 71, 159 S.E. 2d 357; Hardee v. Mitchell, 230 N.C. 40, 51 S.E. 2d 884; In re Bowen, 7 N.C. App. 236, 172 S.E. 2d 62. The appellee concedes the rule. The order itself does not contemplate that the question of custody is being irrevocably determined. The fact that the word \u201cpermanent\u201d is used in the order in no way changes its legal effect. This assignment of error is also overruled.\nOther exceptions and assignments of error appear in the record. However, they are not brought forward and argued in appellant\u2019s brief and are therefore deemed abandoned. Rule 28, Rules of Practice in the Court of Appeals of North Carolina.\nAffirmed.\nBrock and Morris, JJ., concur.",
        "type": "majority",
        "author": "Graham, J."
      }
    ],
    "attorneys": [
      "Walker, Bell & Ogbu/m by John N. Ogburn, Jr., for appellant.",
      "Hugh R. Anderson and William W. Ivey, for defendant ap-pellee."
    ],
    "corrections": "",
    "head_matter": "IN THE MATTER OF: THE CUSTODY OF ROBERT REGINALD ROSE, ELVIN HENRY ROSE and ALEXANDER ROSE\nNo. 7019SC417\n(Filed 16 September 1970)\n1. Habeas Corpus \u00a7 3\u2014 order awarding custody of children \u2014 sufficiency of evidence\nIn a habeas corpus proceeding instituted by the mother to determine the custody of the children, there was plenary evidence to support the court\u2019s findings and conclusion that the mother was a fit and proper person to have custody of the children and that it would be in their best interest to have custody vested in her.\n2. Habeas Corpus \u00a7 3\u2014 order awarding \u201cpermanent\u201d custody of children\nA father could not complain of an order which awarded \u201cpermanent\u201d custody of the children to the mother, since court decrees in child custody and support matters are not permanent in character but may be modified by the court in the future if subsequent events and the welfare of the children so require. G.S. 60-13.7(a).\n3. Appeal and Error \u00a7 45\u2014 the brief \u2014 abandonment of exceptions\nExceptions and assignments of error not brought forward and argued in appellant\u2019s brief are deemed abandoned. Rule of Practice in the Court of Appeals No. 28.\nAppeal by Alfred Reginald Rose from Kivett, J., 10 April 1970 Session of Randolph County Superior Court.\nThis appeal is from an order awarding custody of three infant children to their mother, Olivia Ulloa Rose. The children are: Robert Reginald Rose, born 29 June 1964; Elvin Henry Rose, born 23 November 1966; and Alexander Rose, born 2 January 1968. The order was entered after a lengthy hearing on consolidated applications for writs of habeas corpus, one filed by the mother on 18 June 1969, and the other filed on 21 November 1969 by the children\u2019s father, Alfred Reginald Rose.\nThe court\u2019s order, entered 10 April 1970, makes extensive findings of fact and orders that Olivia Ulloa Rose be awarded the \u201cpermanent care, custody and tuition\u201d of the children, subject to certain recited restrictions and conditions. It further orders that the father shall have the right to have the children visit with him from 10 July to 22 August each summer and every other weekend from Friday at 7:00 p.m. until Sunday a.m. The father appealed.\nWalker, Bell & Ogbu/m by John N. Ogburn, Jr., for appellant.\nHugh R. Anderson and William W. Ivey, for defendant ap-pellee."
  },
  "file_name": "0413-01",
  "first_page_order": 437,
  "last_page_order": 440
}