Cox v. Cox

• Decision Date: 19 May 1958
• Docket Number: No. 40771,40771
• Citation: 233 Miss. 747,102 So.2d 799
• Parties: Lorraine M. COX v. Dr. Ralph COX, Jr.
• Court: Mississippi Supreme Court

Page 799

102 So.2d 799

233 Miss. 747

Lorraine M. COX v. Dr. Ralph COX, Jr.

No. 40771.

Supreme Court of Mississippi.

May 19, 1958.

Brewer & Brewer, Clarksdale, Wm. H. Beck, Jr., New Orleans, La., for appellant.

Talbot, Sullivan & Dunbar, Clarksdale, for appellee.

McGEHEE, Chief Justice.

The litigation involved on this appeal in regard to the custody of Maurine Cox, the daughter of the appellant Lorraine M. Cox and the appellee Dr. Ralph Cox., Jr., was first heard in the court of the Burrough of Manhattan, City of New York, upon a petition for divorce from bed and board filed by the appellant on August 7, 1952. The appellant and appellee were married in the City of Hamburg, State of New York, on May 16, 1951, and their child Maurine was born on January 2, 1952. A judgment was rendered by the New York court on February 20, 1953, upon the petition of the appellant Lorraine M. Cox filed on August 7, 1952, as aforesaid, and on a supplemental petition filed in the said cause in the meantime, seeking to have the custody of Maurine awarded to the plaintiff in said cause, the judgment of the New York court reciting that the suit was 'brought by the plaintiff for a judgment in her favor and against the defendant for a separation from bed and board of the defendant forever and also for the custody of the issue of said marriage; * * *, and the defendant having appeared by Siegel and Gray, Esqs., his attorneys, and the parties having respectively presented their cases to the court and the court having given due deliberation thereon, and having rendered an opinion at the end of the entire case and having made findings of fact and conclusions of law', decided among other things that plaintiff was entitled to a judgment against defendant for separation from bed and board forever by reason of the defendant's abandonment and nonsupport, which was so ordered, and further that it is 'ordered, adjudged and decreed that the plaintiff herein is entitled to the custody of the issue of the said marriage, to-wit Maurine Cox, with permission to the defendant to apply to this court to fix reasonable rights of visitation, and it is further ordered, adjudged and decreed that the defendant pay to the plaintiff during her life the sum of $200.00 per week, commencing with the 2nd day of February, 1953, and weekly thereafter * * *', together with attorney's fees fixed by the terms of said judgment.

It appears that Dr. Ralph Cox, Jr., is the owner of a non-schedule airline, and that during the pendency of the suit in the State of New York, and prior to the judgment hereinbefore mentioned, he had surreptitiously removed the child Maurine from the jurisdiction of the court in New York to the State of Pennsylvania, and placed her in the care of his parents at Pittsburgh, Pennsylvania, and that although the child was beyond the territorial jurisdiction of the New York court at the time the supplemental petition was filed by her mother seeking to have the custody of the child awarded to her, the defendant in the New York court suit had entered his appearance therein as hereinbefore set forth.

Upon learning of the whereabouts of her child, it appears that the appellant herein, Lorraine M. Cox, went to the State of Pennsylvania and instituted habeas corpus proceedings in the Court of Common Pleas in Allegheny County, Pennsylvania, and obtained an award of the custody of the child to her, upon process against the paternal grandparents who had the child in their actual possession, but without notice to or process upon the child's father Dr. Ralph Cox, Jr., who was out of the state of Pennsylvania at that time. About 20 days thereafter, and upon the return of Dr. Ralph Cox, Jr., to Pittsburgh, Pa., he filed a petition in the said Court of Common Pleas of Allegheny County, Pa., to have the judgment in the habeas corpus proceeding vacated, because of the lack of notice to him of the said habeas corpus proceedings, and upon the alleged ground that the mother of the child was an unsuitable person to have its care and custody. However, the appellant herein, Lorraine M. Cox, was granted permission by the Court of Common Pleas of Allegheny County, Pa., to later introduce proof in rebuttal of that offered by Dr. Cox, as to whether or not she was a suitable person to have the care and custody of her little girl.

The result was that on October 29, 1954, the parties had entered into a stipulation, and obtained an order of the Court of Common Pleas of Allegheny County, Pa., pursuant to the said stipulation, and whereby it was agreed and stipulated in the said consent order of the court that Dr. Ralph Cox agreed to pay to his wife Lorraine M. Cox the sum of $500 per month, pendente lite, payable on the first of each month as support for herself and their minor child Maurine, and which further stipulated and agreed that Dr. Ralph Cox, Jr., was to pay 'the sum of $8,000.00 in payment of all accrued arrearages since the inception of legal action in the State of New York ordered by the Supreme Court of the State of New York, * * *.' And it was further stipulated in the consent order of the court that Dr. Ralph Cox was to pay certain sums as attorneys' fees, and that she agreed to vacate 'all present orders of contempt, arrest, and commitment of the said Dr. Cox in any and all proceedings pending in the State of New York', and it was agreed that the said order should be substituted in lieu of any present orders of the court relating to alimony in the State of New York, and it was further agreed with the approval of the Court of Common Pleas in Allegheny County, Pa., that 'in consideration of this stipulation and order, the said Lorraine Cox shall have the temporary custody of the said child during the pendency of these proceedings.' And the order provided for periods of visitation of the child to its father Dr. Ralph Cox, Jr.

Thereafter on October 31, 1955, during one of the periods of visitation of Maurine to her father, he, together with his own father and mother, removed the child from Pennsylvania to Clarksdale, Mississippi, and he thereafter on November 5, 1955, brought the present suit in the Chancery Court of Coahoma County, Mississippi, seeking to have awarded to him the custody of this child, and for that relief alone.

In Amis, Divorce and Separation in Mississippi, Section 225, it is stated: 'In all cases except where a divorce is granted, or separate maintenance is decreed, the right to the custody of children must be determined on habeas corpus. No other remedy exists. In such a case the statute provides that the writ of habeas corpus shall extend to all cases * * * by which the rightful custody of any person is withheld from the person entitled thereto.'

The above stated rule was adhered to in Walker v. Walker, 140 Miss. 340, 105 So. 753, 42 A.L.R. 1525. In the later case of Davis v. Davis, 194 Miss. 343, 12 So.2d 435, the Court recognized the right of the lower court to award custody, where there was a prayer for a divorce, even though the prayer for divorce was denied. See Bunkley and Morse's Amis, Divorce and Separation in Mississippi, page 221, Section 8.09.

In the instant suit, brought in the Chancery Court of Coahoma County, Mississippi, the complainant moved to Clarksdale, Mississippi, on October 31, 1955, and five days thereafter, to-wit on November 5, 1955, he filed this suit for the custody of this child, and for that purpose alone, since he had not resided in Mississippi...