#### H. AUBREY FORD, JR. v. BARBARA DALE FORD.

(Filed 30 October 1963.)

Appeal -by defendant from Clark (Edward B.J, Special Judge, August Term 1962 of Lee.

This -appeal was argued -at -the Fall Term 1962 as Oase No. 525. The decision o-f this Court has been delayed pending an. appeal to- the Supreme Court o-f the United States on a -decision rendered by -the Supreme Court of South Carolina, involving the- -custody of the three minor children born -of the marriage between the plaintiff iand the defendant. See Ford v. Ford, 239 S.C. 305, 123 S.E. 2d 33, 371 U.S. 187, 9 L. Ed. 2d 240.

Prior to 25 August 1959, the parties were -residents of this State, domiciled in Sanford, North Carolina. Due to an -adulterous -affair on th-e p-art of the defendant wife, the parties separated and the wife went to- -the -home of her mother in Richmond, Virginia. O-n 27 August 1959, the wife to-ok the min-or children of -the marriage from North Carolina to the home of her mother in Richmond, Virginia, w-itho-ut the permission of the husband.

The husband, on 28 August 1959, filed in the Law and Equity Court of Richmond, Virginia, a petition for habeas corpus, -alleging that the wife h-ad the children and that she “has recently been guilty of acts which were not only of the -nature that would justify the petitioner seeking a divorce from her but which render her unfit to have custody of said children,” etc.

*434Thereafter, negotiations took place between the parties, both being represented by .counsel, and they agreed that the husband was, with minor exceptions, to have custody of the 'Children during the school year .and that the wife was to- ’have -custody during summer vacations and on some holidays. When notified of this agreement, the Richmond court entered -an order dismissing the case upon representation that the parties had agreed concerning custody of the infant children. This agreement will be referred to- hereinafter ais the Virginia agreement.

On 10 August 1960, while t'he minor children, were in the custody of the wife, pursuant to- the Virginia agreement, the wife moved to Greenville, South Gano-lina, and instituted an action for the custody of the -children. The wife was awarded custody an-d the husband w-as given visitation rights to- -be -agreed upon by the parties. On a-ppeal to the Supreme Court of South Carolina by the husband, the Court held that the South Carolina courts were b-o-und by the Virginia proceeding and must give full faith .and credit to it. The wife appealed to -the Supreme Court of the United State's, and that Court -held that the Virginia proceeding wais not res judicata and was neither -binding on the courts of Virginia nor the courts of South Carolina.

In Ford v. Ford,.S.C., 130 S.E. 2d 916, -the Supreme Court o-f South Carolina, in -an exhaustive -opinion, sets out a complete history of the liti-g-ation and directs the lower court to enter judgment in accordance with the Virginia -agreement.

The judgment in ithe court below, based on the issues answered by the jury, granted -the plaintiff in this -action an absolute divorce and awarded custody of the minor -children of the marriage in- conformity with the Virginia agreement.

The parties to tins litigation a-greed .at the 'hearing -in the trial below, and in this Court When the case was argued here, that there has been no change -in -conditions since the parties entered into the Virginia agreement with respect to custody.

Clawson L. Williams, Jr.; Leatherwood, Walker, Todd & Mann; Hoyle ■& Hoyle for plaintiff appellee.

McDermott, Cameron & Harrington; Allen Langston for defendant appellant.

Per Curiam.

Since there is n-o- appeal from the judgment entered below except -as to -custody, and it appearing .that the order to- be entered by -the lower court in South Carolina •pursuant to the mandate of the Supreme Court of South Carolina, as well as the judgment entered in the Superior Co-urt of Lee County, North Carolina, conform *435 tbo the custody .agreement entered into by the parties in Virginia, the • judgment below is

Affirmed.