#### In re JAMES LESLIE ALBERTSON.

(Filed 24 January, 1934.)

1. Habeas Corpus B e—

In habeas corpus proceedings for the custody of a minor child either party may appeal to the Supreme Court from final judgment. C. S., 2242.

2. Divorce I? a — Upon separation custody of children may be determined by habeas corpus, but after divorce procedure is by motion in canse.

Construing C. S., 1664 and 2241 together it is held that where husband and wife have separated without being divorced the right to the custody of minor children may be determined by habeas corpus proceedings, but where the parties have been divorced and the decree does not award the custody of the children, the procedure to determine the right to their *743custody is by motion in the cause, and habeas corpus will not lie, and where in habeas corpus proceedings a decree for absolute divorce between the parties is introduced in the record without objection, but the court makes no finding as to whether the parties had been divorced, but awards the custody of the child to its mother, on appeal the case will be remanded for a finding as to whether the parties had been divorced.

3. Same — Agreement in deed of separation does not i>reclude court from awarding custody of child in divorce action.

A deed of separation between husband and wife containing an agreement for the custody of their minor child does not preclude the court, upon granting a decree for absolute divorce in a suit brought subsequent to the deed of separation, from awarding the custody of the child in accordance with the statute. O. S., 1664.

Appeal by respondent W. H. Albertson from Sink, J., at Chambers, 24 June, 1933. From Guileokd.

Error and remanded.

Habeas corpus to determine the custody of James Leslie Albertson, an infant, eight years of age. The mother of the infant is Mrs. Grace Albertson the petitioner and the father is W. LI. Albertson the respondent. These parties were married to each other on 19 June, 1923, and their son was born on 6 November, 1926. In September, 1929, they separated and on 26 February, 1930, they executed an agreement of separation which contains this paragraph: “The said wife shall have the sole and exclusive custody, care and control of the child of the parties hereto, to wit, Leslie, age five years, except that the husband shall have the privilege of seeing the said child at any time he desires.”

There is evidence that thereafter the respondent instituted an action against the petitioner for absolute divorce in the municipal court of the city of High Point and that at September Term, 1932, he was granted a decree dissolving the bonds of matrimony. The court made no order as to the custody of the child; but on 9 June, 1933, the respondent took him from the petitioner and placed him in the home of a family in Eandolph County. On the next day the petitioner obtained a writ of habeas corpus and at the hearing Judge Sink awarded the custody of the child to the mother, finding that'she is a fit and proper person to whom to commit his custody and control. The respondent appealed.

T. W. Albertson and Walser & Casey for appellant.

Thomas Turner, Jr., for appellee.

Adams, J.

No question is made as to the right of appeal, the statute providing that in all cases of habeas corpus where a contest arises in respect to the custody of minor children, either party may appeal to the Supreme Court from the final judgment. C. S., 2242; Stokes v. Cogdell, 153 N. C., 181.

*744In bis answer to tbe petition for tbe writ tbe respondent alleges tbat after tbe deed of separation was executed be was granted a decree by wbicb tbe marriage relation between tbe petitioner and bimself was dissolved; and at tbe bearing be introduced without objection a written instrument purporting to be a judgment of tbe municipal court of tbe city of High Point in tbe case of W. H. Albertson v. G. P. Albertson dissolving tbe bonds of matrimony between these parties. In tbe present case tbe judgment awarded tbe custody of tbe child to tbe mother, but Judge Sink made no reference to tbe decree of divorce and recited tbe fact tbat by agreement contained in tbe deed of separation tbe custody of tbe child bad been committed to tbe petitioner.

If tbe parents of James Leslie Albertson have been granted an absolute divorce, tbe controversy in tbe case before us is similar to tbat which arose in tbe case of Natalia Blake, 184 N. C., 278. There a petition for habeas corpus was filed by tbe mother of the child against Hubert M. Blake, tbe child’s father. Tbe petitioner bad previously been divorced from tbe respondent in the Superior Court of Mecklenburg County, but tbe custody of tbe child bad not been determined. Tbe court bearing tbe writ of habeas corpus awarded tbe custody of tbe child to tbe mother and tbe respondent appealed. This Court found error in tbe order chiefly upon provisions contained in sections 1664 and 2241 of tbe Consolidated Statutes. In tbe former section it is provided tbat after tbe filing of tbe complaint in an action for divorce, either from tbe bonds of matrimony or from bed and board, both before and after final judgment therein, it shall be lawful for the judge of tbe court in wbicb such application is or was pending to make such orders respecting tbe care, custody, tuition, and maintenance of minor children of tbe marriage as may be proper, and from time to time to modify or vacate such orders; also tbat tbe judge may commit tbe custody and tuition of such infant children to tbe father or mother as may be thought best, or alternately to one of them for a limited time and thereafter to tbe other.

Section 2241 has tbe following provision: “When a congest shall arise on a writ of habeas corpus between any husband and wife, who are living in a state of separation, without being divorced, in respect to the custody of their children, tbe court or judge, on tbe return of such writ, may award tbe charge or custody of tbe child or children so brought before it either to tbe husband or to tbe wife, for such time, under such regulations and restrictions, and with such provisions and directions as will, in tbe opinion of such court or judge, best promote tbe interest and welfare of tbe children.” For good cause tbe court or judge may annul, vary, or modify tbe order.

In tbe Blake case this Court held tbat tbe parents must be living in a state of separation, “without being divorced,” before tbe court can *745exercise power by proceedings in habeas corpus to determine the custody of a child, and that as tbe parents bad been divorced and freed from the bonds of matrimony, relief should have been sought by motion in the original cause. The interrelation of the two sections (1664 and 2241) is obvious. The Legislature intended that in cases in which the parents have been divorced the custody of children should be determined by the court in which the divorce was granted, and if there has been no divorce and the husband and wife are living in a state of separation, by proceedings in habeas corpus.

In the pending case the respondent offered in evidence a purported decree of divorce between the petitioner and the respondent, but the record contains neither an admission nor a finding of fact that the marriage relation has been dissolved. . An intelligent disposition of the appeal depends upon the determination of this question; if the bonds of matrimony haXe been dissolved the relief sought cannot be administered by the writ of habeas corpus.

The appellee suggests that the municipal court of the city of High Point has no jurisdiction in actions for divorce, but jurisdiction is claimed by virtue of the Public-Local Laws of 1927, chap. 699, amending the Public-Local Laws of 1913, chap. 569, by which the court was created and organized. The asserted invalidity of the divorce does not appear in the decree or the record and we cannot consider the collateral question whether the act creating the court transgressed any constitutional limitations.

The agreement in the deed that the petitioner should have the care and control of the .child cannot deprive the court of its power to adjudicate the custody. 19 C. J., 347, sec. 804; 30 C. J., 1059, sec. 836.

The cause is remanded to the Superior Court for a specific finding on the contested question whether the marriage relation between the petitioner and the respondent has been dissolved.

Error and remanded.