Bubac v. Boston, 91-CA-0147

CourtUnited States State Supreme Court of Mississippi
Citation600 So.2d 951
Docket NumberNo. 91-CA-0147,91-CA-0147
PartiesDiana Boston BUBAC v. Laura BOSTON.
Decision Date20 May 1992

John E. Ellis, Vicksburg, for appellant.

Wren C. Way, Way Field & Bodron, Vicksburg, for appellee.

Before DAN M. LEE, P.J., and PRATHER and PITTMAN, JJ.

PRATHER, Justice, for the Court:


The issue of wrongful detention of two minor children is the subject of this appeal from the County Court of Warren County.

Diana D. Boston Bubac, the natural mother, had filed a habeas corpus petition alleging that her former mother-in-law, 70-year-old Laura Boston, had retained custody of the children in violation of a Kentucky circuit court divorce decree. 1 The county court judge dismissed Diana's petition, and she appealed.

This Court holds that the Kentucky divorce decree vested custody of the children in their mother--not their paternal grandmother. Absent proof that giving full faith and credit to the divorce decree would be adverse to the children's best interest, this Court must reverse the county court judge's refusal to issue a writ.

A. Detailed Background

In 1989, Diana D. Boston enlisted in the United States Army; her husband, Steve, had enlisted earlier. Diana's mother-in-law, Laura Boston of Vicksburg, cared for the children until either she or Steve could resume caring for them. 2

In November 1989--upon completing her basic training and an assignment with the military police--Diana resumed caring for the children at Fort Knox, Kentucky. Steve was stationed in Korea at the time.

By the summer of 1990, Steve had returned from Korea--after which time he and Diana experienced marital difficulties. They transported the children to Vicksburg so that Laura could care for them while they attempted to resolve their difficulties; their attempts to resolve them failed. Later that year, they filed a joint petition for "Dissolution of Marriage" along with a "Separation Agreement" (hereinafter "Agreement") in the Hardin Circuit Court in Kentucky. In January 1991, the circuit court judge issued his final decree through which he dissolved Diana and Steve's marriage and incorporated the terms of the Agreement into the dissolution decree. Pursuant to the terms of the Agreement:

Respondent, Steve L. Boston, and Petitioner, Diane D. Boston, shall have the joint care, custody, and control of the infant children, with said infant children residing with Respondent until such time as Petitioner leaves the military and is fully stabilized in her environment as a civilian. At that time, the children shall commence to live with Petitioner, and Petitioner, therefore, will become a possessory parent. It is understood that the children may visit for short periods not to exceed two weeks with Respondent's mother, independent of the custody or visitation provisions in this agreement.

The Army meanwhile transferred Steve to Ft. Hood, Texas, and then to Saudi Arabia. The Army refused to permit him to take the children along. He therefore left the children with his mother, Laura.

Diana, who eventually married Robert Bubac, continued her military service at Ft. Knox. She also succeeded in securing permission from the Army to resume custody of the children. But when Diana attempted to retrieve the children from Vicksburg, Laura refused to give them up. Laura testified: "I told her [Diana] she's welcome to come anytime--she had visitation for two weeks and holidays and whatever." Diana, however, revealed that Laura would not even permit her to visit the children or speak with them via telephone.

Diana consequently filed a habeas corpus petition in the County Court of Warren County against Laura--alleging that she was wrongfully detaining the children. After a hearing, the judge ruled in favor of Laura, whom he found to be "a fit, suitable and proper person to have custody of the minors." The judge opined that "continuation of such custody is in the best interest of the children." When asked for his opinion regarding Diana's fitness to be the children's custodian, the judge responded: "I did not entertain this[;] I did not make a ruling that she was morally unfit, and I do not now so decide that."

Diana appealed.

B. The Issues

Diana presented two issues for analysis. For brevity's sake, these issues have been consolidated into the following:

Whether the county court judge erroneously denied Diana's petition for writ of habeas corpus?


A. The Writ of Habeas Corpus and Jurisdictional Considerations

This Court has repeatedly held that the county court has subject-matter jurisdiction over habeas corpus proceedings. See, Talley v. Womack, 249 Miss. 773, 163 So.2d 742, 744 (1964) (citing cases). The judge may not "by special order prolong its powers and jurisdiction." Id.

A habeas corpus proceeding may be convened by a judge of the chancery, circuit, or Supreme Court. Miss.Code Ann. Sec. 11-43-7 (1972). "When an application in habeas corpus has been made to a county judge, or has been made returnable before him, he acts not as a county court [judge], but with all the power and authority of a circuit judge or chancellor; wherefore, an appeal [must] be taken direct to this Court under [statutory law]." Cole v. Cole, 194 Miss. 292, 295, 12 So.2d 425, 426 (1943); see also Wade v. Lee, 471 So.2d 1213, 1215 (Miss.1985) (citing cases and Miss.Code Ann. Sec. 9-9-23 (1972)); Nance v. Vick, 318 So.2d 889, 890 (Miss.1975); Miss.Code Ann. Secs. 11-43-53 & -55 (1972).

Finally, venue of the habeas corpus proceeding is in the county where the children allegedly are being wrongfully detained. Logan v. Rankin, 230 Miss. 749, 759, 94 So.2d 330, 335 (1957).


The common-law writ of habeas corpus--also known as the "Great Writ"--"extends to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto, except in cases expressly excepted." Miss.Code Ann. Sec. 11-43-1 (1972). 3 The writ is a "civil, as distinguished from a criminal, remedy or proceeding." 39 C.J.S. Habeas Corpus Sec. 3, at 461 (1976).

With regard to proceedings instituted to resolve the issue of alleged wrongful detention of children, as distinguished from detention of individuals under criminal process, Mississippi jurisprudence has followed what seems at first impression to be two schools of thought. The first school of thought--reflected in this Court's opinions issued primarily in the former half of this century--held that a judge is narrowly empowered "to either set the child at liberty or award its custody to the [entitled] party." See, e.g., Gray v. Gray, 121 Miss. 541, 545, 83 So. 726, 726 (1920). The judge is not empowered "to direct the manner in which [the custodial] party shall exercise his lawful authority over such child, or to direct that he shall surrender ... the custody ... to another person," for example, due to a material change in circumstances. Id., quoted in Yarbrough v. Dunnam, 130 Miss. 669, 94 So. 892, 892 (Miss.1923).

In the latter half of this century, this Court continued to recognize the writ of habeas corpus as a legal remedy in custody disputes. However, the remedial nature of the writ took on another dimension--an equitable dimension--to which this Court referred in Neal v. Neal as the "majority rule":

If, [upon issuance of] the decree granting a divorce and awarding the custody of a child, the circumstances have changed, a habeas corpus court may award the custody to the other parent or to a stranger, if the welfare of the child demands it; and in the exercise of such discretion, the court may look to the circumstances relating to the child's ordinary comfort, contentment, and intellectual and moral development.

238 Miss. 572, 119 So.2d 273, 275 (Miss.1960). 4 The Court noted the public policy considerations which led to promulgation of this rule: (1) a material change in circumstances, (2) the welfare of the child, (3) "the position and responsibility of the state as parens patriae," and (4) "the fact that the parties to [habeas corpus] proceedings [may not be] the same as in the divorce action." Id. (citing 39 C.J.S. Habeas Corpus Sec. 46, at 586 n. 57 ( [1976] )). In short, the "best interest and welfare of the child is the prime consideration." Id. The Neal Court confined the scope of its opinion to a "situation where a parent has invoked the aid of a court other than that which made the initial custodial decree awarding [the parent's] custody, and the defendants were not parties to that decree." Id.; see also Mixon v. Bullard, 217 So.2d 28, 30 (Miss.1968); Hinman v. Craft, 204 Miss. 568, 575, 37 So.2d 770, 770-71 (1948). If the parties in the habeas corpus proceeding and original custody proceeding are identical, the chancery court in which the original custody decree was issued has continuing and exclusive jurisdiction to modify the decree upon a show of proof of changed circumstances. "[A]ny other court is without jurisdiction to modify the original court's decree." Reynolds v. Riddell, 253 So.2d 834, 836-37 (Miss.1971); Ladner v. Ladner, 206 So.2d 620, 624 (Miss.1968).

More recently, this Court relaxed the jurisdictional restriction placed upon the judge presiding over a habeas corpus proceeding which involves the same parties involved in the original custody proceeding Generally, when prior proceedings conducted by another court determined the custody of an infant, the prior judgment must be regarded as final, and it is not subject to attack by subsequent habeas corpus proceedings. However, the habeas corpus court can disregard the prior decree where circumstances and conditions arising since the decree show that the party awarded custody is unfit to exercise or has abandoned custody of the child.

Smith v. Watson, 425 So.2d 1030, 1032 (Miss.1983); see Pearson v. Pearson, 458 So.2d 711, 713 (Miss.1984) (judge may modify custody decree issued through another court...

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