Cox v. Cox
| Decision Date | 19 January 1959 |
| Docket Number | No. 40991,40991 |
| Citation | 108 So.2d 422,234 Miss. 885 |
| Parties | Lorraine M. COX v. Ralph COX, Jr. |
| Court | Mississippi Supreme Court |
Brewer & Brewer, Clarksdale, for appellant.
Talbot & Sullivan, Clarksdale, Gordon & Kendall, Jackson, for appellee.
The issues are: (1) whether in a divorce action brought in Mississippi by the husband, who established the necessary legal residence, and on personal service of process on the defendant wife, the trial court should have sustained defendant's motion to dismiss for lack of jurisdiction, on the ground that there was a then pending divorce action by the husband in Pennsylvania based on a different ground of divorce, and (2) whether a temporary custody order of a Pennsylvania court precluded the Mississippi court from awarding custody of their minor child to the husband.
On February 9, 1957 Ralph Cox, Jr., the appellee, filed a bill for divorce in the Chancery Court, Second Judicial District of Bolivar County, Mississippi, against his wife, appellant, Lorraine M. Cox. He also prayed for custody of their five year old daughter, who for over a year had been living with her father in Bolivar County, Mississippi. The defendant was personally served with process in Bolivar County. The ground for divorce was adultery. On the merits of the proceedings, the defendant filed no answer and offered no witnesses. The undisputed testimony reflected the correctness of the charges in the bill. The final decree of the Chancery Court of May 29, 1957 so adjudicated, awarded to complainant a divorce and permanent custody of their minor daughter, Maureen Cox. So there is no factual issue on the merits. And the decree was based upon personal service of process upon the defendant.
On this appeal, appellant's contention is that the trial court erred in overruling her motion to dismiss the action for lack of jurisdiction. That motion recited that defendant was appearing soley for the purpose of raising the jurisdictional issue. It was contended that the chancery court had no jurisdiction because of a pending divorce action brought by appellee several years prior thereto in the Court of Common Pleas of Allegheny County, Pennsylvania. The motion did not have attached to it authenticated copies of the records in that proceeding, but referred to such records which were incorporated in the record in Cause No. 40,771 of this Court, Cox v. Cox, Miss., 102 So.2d 799, decided May 19, 1958. Appellee contends that the motion to dismiss is insufficient on its face, because it does not have attached to it as exhibits authenticated copies of the Pennsylvania proceedings. Appellant says, in effect, that the motion to dismiss incorporated the same by reference to the earlier lawsuit between the parties, which originated in the Chancery Court of Coahoma County; and because counsel for both sides had an oral agreement that the Pennsylvania proceedings as set forth in the other record should be considered on this motion to dismiss.
We do not need to decide this pleading issue concerning sufficiency of the motion to dismiss, since we have concluded that the facts which are established authorized the chancery court to refuse to dismiss or stay this suit because of the then pendency of the Pennsylvania proceedings.
On October 31, 1955 Ralph Cox, Jr. moved to Clarksdale, Mississippi, and five days later brought suit in the Chancery Court of Coahoma County for the sole purpose of obtaining an adjudication for the custody of his child. Lorraine Cox in that action filed a motion to dismiss for lack of jurisdiction, asserting the court had no jurisdiction because the suit was solely one for child custody, and because of a pending divorce action in Pennsylvania. The Chancery Court of Coahoma County overruled that motion, and awarded custody of Maureen to her father. On appeal, in 102 So.2d 799, we held that in Mississippi the custody of a child can only be determined in suits for divorce or separate maintenance, or on habeas corpus; and that no remedy exists to adjudicate custody alone. That decision followed a well-established rule in Mississippi. That was all which was necessary to be decided in reversing the chancery court and rendering judgment for Mrs. Cox in that child custody case. However, the opinion additionally noted that there was a pending divorce proceeding in Pennsylvania, in which the parties had agreed upon a consent order giving temporary custody of the child to Mrs. Cox; and it was said that 'even under the rule of comity', the Chancery Court of Coahoma County should have declined jurisdiction. This latter statement as to comity was not necessary to that decision, and for that as well as other reasons is not controlling in this case.
Moreover, the circumstances in the instant case are entirely different from those in the original child custody case. There ...
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