Cleckley v. Cleckley

• Decision Date: 15 January 1948
• Docket Number: 5 Div. 435.
• Citation: Cleckley v. Cleckley, 250 Ala. 78, 33 So.2d 338 (Ala. 1948)
• Parties: CLECKLEY v. CLECKLEY.
• Court: Alabama Supreme Court

33 So.2d 338

250 Ala. 78

CLECKLEY v. CLECKLEY.

5 Div. 435.

Supreme Court of Alabama

January 15, 1948

Booth & Duncan, of Prattville, for appellant.

Omar L. Reynolds and Reynolds & Reynolds, all of Clanton, for appellee.

LIVINGSTON, Justice.

Two questions are presented for review by this appeal: One, the question of jurisdiction of the Circuit Court, in Equity, of Chilton County, of the subject matter; and, the other, the venue of the action.

Jim Cleckley, the appellee here, filed a bill of camplaint in the Circuit Court, in Equity, in Chilton County, against Beatrice Cleckley, the appellant here.The cause was submitted upon bill of complaint, decree pro confesso on personal service and testimony as noted by the register.Subsequent thereto on the 25th day of August 1945, final decree of divorce was rendered, divorcing the said Jim Cleckley from the said Beatrice Cleckley for and on account of voluntary abandonment.

On October 23, 1945, Jim Cleckley filed a petition in the Circuit Court, in Equity, of Chilton County, praying that said petition be taken and considered by the court as a supplemental petition or as supplementary pleading to the aforementioned cause.

Appellant demurred to said petition in its aspects of venue.The court below overruled the demurrer, and from the decree overruling the demurrerdefendant appeals.

The petition alleges that Jim Cleckley is a resident citizen of Chilton County, and that Beatrice Cleckley is a resident citizen of Autauga County.The petition further avers that the parties have a fourteen months old son (at the time this petition was filed), who is now in the custody, control and possession of Beatrice Cleckley in Autauga County.Petitioner seeks the custody of the minor, or the right of visitation at reasonable and proper times.

A copy of the divorce decree is attached to and made a part of the petition.It makes no mention whatever of the minor.

The first point raised by appellant is that of venue.Where the defect is apparent on the face of the petition or bill of complaint, demurrer is the proper remedy for raising it.Hammons v. Hammons,228 Ala. 264, 153 So. 210.In proceedings of this nature, the chancellor does not proceed upon the theory that the petitioner, whether father or mother, has a cause of action against the other, or indeed against anyone.He acts as parens patriae to do what is best for the interest of the child.He is not adjudicating a controversy between adversary parties, to compose their private differences.He is not determining rights as between a parent and child, or as between one parent and another.Ex parte White, 245 Ala. 212, 16 So.2d 500.

In Bridges v. Bridges,227 Ala. 144, 148 So. 816, we held that the court could have provided for the custody of the child and its support and maintenance, but whether so or not, a proceeding thereafter concerning such matters may be begun in the same court by supplemental proceedings, and further, that any pleading showing upon its face that the welfare of an infant requires an order in respect to its custody and maintenance is sufficient to invoke equity jurisdiction.Brown v. Jenks,247 Ala. 596, 25 So.2d 439.See, 27 C.J.S., Divorce, § 306, note 74.

Furthermore, it is held that the domicile of the father is the domicile of the infant child, and cannot be changed without the consent of the father and the court.Ex parte Fletcher, 225 Ala. 139, 142 So. 30: see, also, 17 Am.Jur. 627, section 59, and authorities there cited.Venue was properly laid in Chilton County.

The theory which appellant invokes that the chancery court loses control of such matters when it renders a decree of divorce without reservation, has been abandoned by this Court.Bridges v. Bridges, and Brown v. Jenks, supra.

The demurrer was property overruled.

Affirmed.

GARDNER, C. J., and FOSTER and STAKELY, JJ., concur.

LAWSON and SIMPSON, JJ., concur in result.

BROWN Justice (dissenting).

The only question in this case is not one of general jurisdiction of courts of equity to deal with the custody of minors or their welfare, but is purely a question of venue, about which there should be no controversy, as the statute provides, 'The bill must be filed in the county in which the defendant, or a material defendant, resides; * * *.'Code of 1940, Tit. 7, § 294.

The question here is presented by demurrer to a petition or supplemental bill filed in the Circuit Court of Chilton County.Therefore, the allegations of the bill must be construed most strongly against the pleader.These allegations show that the complainant by a statutory proceeding for divorce filed in ...