Burns v. Shapley

• Decision Date: 18 December 1917
• Docket Number: 1 Div. 276
• Citation: 77 So. 447,16 Ala.App. 297
• Parties: BURNS v. SHAPLEY.
• Court: Alabama Court of Appeals

77 So. 447

16 Ala.App. 297

BURNS v. SHAPLEY.

1 Div. 276

Court of Appeals of Alabama

December 18, 1917

On Application for Rehearing, Jan. 5, 1918

On Application for Rehearing.

Appeal from Probate Court, Baldwin County; James M. Voltz, Judge.

Habeas corpus by Mrs. Ralph Burns, formerly Shapley, against Walter Shapley. From an adverse judgment, plaintiff appeals. Reversed and rendered.

Mark D. Brainard, of Montgomery, for appellant.

W.S Anderson, of Bay Minette, for appellee.

BROWN P.J.

The appellant, by the writ of habeas corpus, seeks to regain from the appellee the custody of two minor children, one six and the other three years of age. The appellant is the mother and the appellee the father of the children, and were formerly husband and wife, that status having been terminated by a decree of divorce granted at the instance of the appellee by the district court of the Sixteenth judicial district of the state of Montana, sitting in and for the county of Fallon, in said state, in a suit in which the court had jurisdiction of both parties by personal appearance. At the time of the proceedings in the Montana court, the children were in the custody of the mother, who had established her domicile in that state, and the court in a proceeding ancillary to the suit for divorce and as an incident thereto, both of the parties here appearing by counsel, and appellee in person on application of appellee entered a decree taking the children from the custody of the appellant and committing them for the time being to the custody of the appellee. The text of that decree, effecting this result, in so far as is here material is as follows:

"Upon motion of the defendant and upon due and timely service of notice to and upon the plaintiff, and the plaintiff appearing by her counsel, L.L. Wheeler, Esq., of Ekalaka, Mont., and the defendant appearing by his counsel P.C. Cornish, Esq., of Baker, Mont. and the hearing hereof having been continued until the present date at which time, the defendant appearing by his said counsel, and the plaintiff in no way appearing: Now, therefore, it is hereby ordered, adjudged and decreed that the custody, care and control of the said minor children of the parties to the said action, namely, Ellis Stowell Shapley and Jack Floyd Shapley be and the same is hereby given to the said Walter Shapley, for and during the minority of the two said children, and until further orders of this court, said children to be kept in the jurisdiction of this court."

After obtaining the custody of the children under this decree, and in violation thereof, the appellee removed the children from the jurisdiction of the state of Montana, bringing them into this state, the appellee being at the time a citizen of this state with his domicile near Foley, in Baldwin county, Ala. Thereafter the court, without personal notice to appellee, on the application of the appellant, and while the children were in the custody of the appellee in Alabama, modified the decree as to the custody of the children, the decree as modified being as follows:

"Upon motion for order to show cause in the matter of the custody of the minor children of plaintiff and defendant herein, J.A. Williams, Esq., appearing as attorney for plaintiff and P.C. Cornish, Esq., appearing as attorney for defendant. The witness M.E. Jones, duly sworn, testified in behalf of plaintiff, and the order of the court awarding the custody of the children to defendant is modified, and the custody of the minor children of plaintiff and defendant is awarded to the plaintiff, the said children to be kept within the jurisdiction of this court."

The appellant rests her right to invoke the jurisdiction of the courts of this state to regain the custody of the children solely on the theory that she is the agent or trustee of the Montana court, and the sovereignty of the state of Montana, whose jurisdiction and power as parens patriae has been invoked for the protection of the minor children while they were under the supreme guardianship of that state, and within the jurisdiction of its courts, and the decree of the court is entitled to full faith and credit in the courts of this state. On the other hand, the appellee contends that the last order of the court was made without notice to him, and at a time when he, with the children in his custody, was in the jurisdiction of another sovereignty--the state of Alabama--and that the decree as modified is void, and therefore he is entitled to retain the custody of the children, in the absence of a showing that he is not a proper person to have their custody. We find cases wherein courts of one state have refused to recognize the adjudications of the courts of another state dealing with the custody of children, under the full faith and credit clause of the federal Constitution, on the ground either that such adjudication was supported by constructive notice only, and therefore had no extra-territorial operation and could not affect the right of a party domiciled in another state, over whom the court had no jurisdiction, or at the time of such adjudication the children themselves had an established domicile in a state other than the one in which the decree was rendered, and therefore were not subject to the sovereignty of the state seeking to exercise its power over them.

The case of In re Bort, 25 Kan. 308, 37 Am. Rep. 255, cited by appellee, was in the latter class. The principles influencing those decisions are not present in this case. Here, as the evidence shows, the mother of the children had separated from her husband and returned to the state of Montana, where her people lived, to reside with her parents, taking with her the elder of the children, the other not then being born, and established her domicile in that state for the time requisite to entitle her to sue for a divorce. During that time, the other child was born in the state of Montana. The appellant there commenced a divorce suit, and in that proceeding the appellee appeared, thus placing the parties and the subject-matter within the jurisdiction of that court, and the children under the sovereign guardianship of that state. These facts clearly differentiate this case from the line of authorities above referred to. It is well settled in almost every jurisdiction that in dealing with the custody of minor children, the question of paramount importance to be considered by the court is the welfare of the children, and if necessary for their good, the court has the power to take them from the custody of the parent and intrust their custody to some other suitable custodian. Kirkbride v. Harvey, 139 Ala. 231, 35 So. 848; Neville v. Reid, 134 Ala. 320, 32 So. 659, 92 Am.St.Rep. 35; Murphree v. Hanson (Sup.) 72 So. 437; Anonymous, 55 Ala. 428; Bryan v. Bryan, 34 Ala. 516. The theory upon which the court proceeds in such cases is that the custody and control of the parent over his minor children is a trust committed to him by the state, and this trust is dominated by the supreme guardianship of the state as parens patriae of all infants within its border, and when the parent abuses the trust so as to endanger the welfare of the child, in such sort as to hamper or retard its development into a good citizen, the interest of society requires the state to assert its supreme guardianship and protect its ward. See Black's Law Dictionary, "Parens Patriae," p. 868; Hochheimer, Custody of Infants, § 12, pp. 48-50; Cooley's Blackstone, vol. 2, p. 426; Bryan v. Bryan, supra; Morrill v. Morrill, 83 Conn. 479, 77 A. 1.

It has been said:

"Minors are the wards of the nation, and even the control by the parent is subject to the unlimited supervisory control of the state" (1 Tiedeman, State and Federal Control, 335; Starnes v. Albion Mfg. Co., 147 N.C. 556, 61 S.E. 525, 17 L.R.A. [N.S.] 602, 15 Ann.Cas. 470), and that "the supreme right of the state to the guardianship of children controls the natural rights of the parent when the welfare of society or of the children themselves conflicts with parental rights" (Starnes v. Albion Mfg. Co., supra; Alderman v. Alderman, 159 N.C. 507, 73 S.E. 126, 39 L.R.A. [N.S.] 988).

And in the recent case of Murphree v. Hanson (Sup.) 72 So. 441, the Supreme Court of this state used this language:

"Civilization has long since discountenanced that doctrine of ancient Roman law wherein children were treated as chattels, and the courts of this day have no more important or sacred duty to perform than to look after the proper care and custody of" minor children "within their jurisdiction."

The district court of Montana is a court of chancery (Montana Constitution, art. 8, § 11), and when that court assumed jurisdiction to determine the question as to who should have the custody of the children involved in this suit, they became the wards of the court, and the respondent by removing them from the state of Montana, in violation of the decree of that court, placed himself in contempt of court. McGough v. McGough, 136 Ala. 170, 33 So. 860; Pearce v. Pearce, 136 Ala. 188, 33 So. 883; 22 Cyc. 519, 520.

the learned trial judge held that the removal of the children out of the state of Montana by appellee deprived the court of that state of jurisdiction over them, and that the decree as modified was void, for want of jurisdiction in the court to render it.

The decree as first entered was unquestionably interlocutory, the court retaining in the decree jurisdiction to modify it. The decree as modified is final and determinative of the rights of the parties as predicated on the facts then existing, if the removal of the children out of the state did not deprive the court of jurisdiction. McGough v. McGough, supra; Slack v. Perrine, 9 App. D.C. 128; Com. ex rel Thompson v. Ebert,...