Brown v. Stevens, 18183.

• Citation: 331 F.2d 803,118 US App. DC 57
• Decision Date: 09 April 1964
• Docket Number: No. 18183.,18183.
• Parties: William H. BROWN, Appellant, v. Betty Moxley STEVENS, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

118 US App. DC 57, 331 F.2d 803 (1964)

William H. BROWN, Appellant, v. Betty Moxley STEVENS, Appellee.

No. 18183.

United States Court of Appeals District of Columbia Circuit.

Argued March 4, 1964.

Decided April 9, 1964.

Mr. Harvey B. Bolton, Jr., Washington, D. C., with whom Messrs. William H. Clarke, Richard W. Galiher and William E. Stewart, Jr., Washington, D. C., were on the brief, for appellant.

Mr. D. Robert Cervera, Washington, D. C., with whom Mr. James A. Davis, Washington, D. C., was on the brief, for appellee.

Before FAHY, DANAHER and WRIGHT, Circuit Judges.

WRIGHT, Circuit Judge.

In this matter involving custody of a ten-year-old child, the District of Columbia Court of General Sessions, on March 16, 1960, awarded permanent custody to the maternal aunt, a domiciliary of Maryland. In so doing, the court held both the mother and the father unfit.

On December 15, 1961, following a full hearing on a petition for custody brought by the father in the Circuit Court of Montgomery County, Maryland, custody was again awarded to the aunt. Shortly thereafter the instant proceedings were brought by the father in the District of Columbia Court of General Sessions — once more seeking custody of the child. On December 14, 1962, the District of Columbia Court of General Sessions granted him custody, ordering the Maryland custodian to turn the child over to her father. Neither the custodian nor the child was named as a party in the action before the Court of General Sessions.

The District of Columbia Court of Appeals reversed, holding "that the continuing jurisdiction of the District of Columbia court ceased when by that court's order the child, the subject of the custody proceeding, was removed from the District and placed in the custody of a resident of Maryland."

We believe that the District of Columbia Court of Appeals was right, but for the wrong reason, in deferring to the courts of Maryland. Although the question as to dual jurisdiction with respect to the custody of a child may be confused in some areas, in the District of Columbia the law is clear. "A custody award is subject to change, in the court in which it was made, upon a proper showing, so long as the court has control of the child. When the child comes under the control of another jurisdiction, its courts have equal power. Whichever court exercises that power should respect the earlier judgment, to the extent that issues there presented were then judicially determined. To that extent the doctrine of res judicata and the full faith and credit clause should apply." Boone v. Boone, 80 U.S.App.D.C. 152, 154-155, 150 F.2d 153, 155-156 (1945).

Thus in this case jurisdiction exists concurrently in the District of Columbia Court of General Sessions and the Circuit Court of Montgomery County, Maryland.¹ The question then presented is whether, under the circumstances of this case, the Court of General Sessions should have exercised its jurisdiction. For the following reasons, in the interest of avoiding a possible unseemly conflict between courts of concurrent jurisdiction, we think that as a matter of comity the Court of General Sessions should stay its hand and defer to the Circuit Court of Montgomery...