State Ex Rel. Rasco v. Rasco

• Citation: 139 Fla. 349,190 So. 510
• Parties: STATE ex rel. RASCO v. RASCO.
• Decision Date: 18 July 1939
• Court: United States State Supreme Court of Florida

190 So. 510

139 Fla. 349

STATE ex rel. RASCO v. RASCO.

Florida Supreme Court, Division A.

July 18, 1939

Rehearing Denied Aug. 1, 1939.

Original proceeding by the State, on the relation of Wendell F. Rasco against Wilheimina Gates Rasco for a writ of habeas corpus to secure the custody of the parties' minor child. On respondent's motion to dismiss the writ.

Motion granted.

COUNSEL R. A. Rasco, of Miami, Glenn O. Rasco, of Miami Beach, and M. Lewis Hall, of Miami, for relator.

Fred B Noble and S. S. Blonheim, both of Jacksonville, for respondent.

OPINION

TERRELL Chief Justice.

For several years prior to September 1937, Relator and Respondent lived in the State of New Jersey as husband and wife, one child now seven years old being the product of that union. During the month and year last stated, Respondent left Relator and returned to Florida, taking their minor child with her. Except the years of her married life which she had lived in New Jersey, Respondent had spent all her life in Florida.

In August, 1938, Relator secured a divorce from Respondent in New Jersey, but the custody of the minor child was not before the New Jersey Court, and it was not considered in the divorce litigation. Respondent later sought and secured a divorce from Relator in Duval County, Florida. In this litigation the custody of the minor child was considered and adjudicated to Respondent. The final decree in the latter suit was on motion dismissed because of an attack on the service, but a new suit was at once instituted praying for divorce on the same grounds. In this suit the chancellor entered an order restraining Relator from interfering with the custody of the minor child until further order of the Court.

In January 1939, the latter suit for divorce and custody of the minor child being then pending in Duval County, writ of Habeas Corpus was issued by this Court on petition of Relator for the purpose of securing custody of the minor child. The main ground on which said writ was sought and on which it was granted was an alleged conflict of jurisdiction between the Circuit Court of Duval County and the Chancery Court of New Jersey. Respondent moves to quash and dismiss the writ of Habeas Corpus. We treat both as a motion to dismiss. State ex rel. Watland v. Hurley, 132 Fla. 892, 182 So. 442.

The motion to dismiss challenges the alleged conflict of jurisdiction between the Circuit Court of Duval County and the Chancery Court of New Jersey, and further contends that this Court should not assume jurisdiction to adjudicate the custody of the minor child when the bill for divorce is pending in Duval County in which that question is also involved.

Petitioner grounds his charge of conflict of jurisdiction on the fact that the domicile or residence of the child is that of the father which is New Jersey, and while the mother may establish her residence in another jurisdiction for the purpose of securing a divorce, she cannot so establish the domicile of the minor child and there prosecute a suit to adjudicate his custody.

It is true that under the common law the father had the superior legal right to the custody of his minor child or children, but even under the common law this doctrine was subject to modification if necessary in the interest and welfare of the child. Hopkins v. Hopkins, 84 Fla. 500, 94 So. 157, Minick v. Minick, 111 Fla. 469, 149 So. 483.

The rule so stated is also modified by the doctrine that when a divorce is granted on constructive service, as was the case when Relator's divorce was granted, the defendant and the minor child being without the jurisdiction of the Court, the said Court has no authority to award custody of the minor...