Dorman v. Friendly

• Decision Date: 22 April 1941
• Citation: 1 So.2d 734,146 Fla. 732
• Parties: DORMAN v. FRIENDLY.
• Court: Florida Supreme Court

1 So.2d 734

146 Fla. 732

DORMAN v. FRIENDLY.

Florida Supreme Court

April 22, 1941

Rehearing Denied May 13, 1941.

Wm H. Rogers, Taylor Jones, and Rogers, Towers & Bailey, all of Jacksonville, for petitioner.

E. E. Hazard George W. Thames, and Hazard & Thames, all of Jacksonville, Davies, Richberg, Beebe, Busick &amp Richardson, of Washington, D. C., and Ingebretson Ray, Rawlins & Christensen, of Salt Lake City, Utah, for respondent.

BUFORD, Justice.

In January, 1939 plaintiff, then Nancy Carr Friendly, exhibited in the Circuit Court of Duval County, Florida, her bill of complaint against Edward Friendly seeking divorce, custody of two minor children and an allowance for the support and maintenance of the children. Defendant appeared and answered. Issues were made up, testimony taken, and on final hearing on March 31, 1939, decree of divorce was entered which, inter alia, provided:

'II. That the plaintiff, Nancy Carr Friendly, is awarded the exclusive care, custody and control of Julian Carr Friendly and Margaret Friendly, the two minor children of the parties to this cause, with the right to the defendant, Edward Friendly, to visit said children at any and all reasonable times.

'III. That the defendant, Edward Friendly, shall, upon the entry of this decree, pay to the plaintiff, Nancy Carr Friendly, the sum of One Thousand Seven Hundred and Fifty Dollars ($1,750.00) for the support of said minor children to and including the month of March, 1939, and the further sum of Two hundred and Fifty dollars ($250.00) per month thereafter until further order of this Court, the first monthly payment to be made on April 1, 1939, and continuing thereafter on the first day of each and every calendar month until otherwise ordered by this Court. That this Court retains jurisdiction of this cause and of said parties for the purpose of making such further orders and decrees herein relating to the subject of the support and maintenance of said minor children as may be meet and proper, upon application of either party, in view of circumstances which may warrant modification of this decree.'

There was no reservation of jurisdiction except as stated, supra. There was no order requiring that the children be kept within the jurisdiction of the Court.

At the time of the institution of the suit, and at the date of the entry of the decree, the plaintiff was domiciled with the children in Florida and the defendant was domiciled in the State of New York.

Some time after the entry of the final decree, plaintiff moved to the State of Virginia and there established the permanent domicile of herself and the two minor children. There was neither order of court nor any statute which affected her right to so remove from this State and establish her domicile and that of the children in the sister State, where they have ever since remained.

On February 28, 1940, the defendant filed a petition in the original suit in Duval County, Florida, praying for modification of final decree so as to reduce the amount to be paid for the support and maintenance of the children and to award to him the custody of the children.

Plaintiff filed answer to the petition alleging that she and the children are residents of and domiciled in Warrenton, Virginia, and that the Circuit Court of Duval County, Florida, is now without jurisdiction over the children. She also alleged that defendant is a resident of Salt Lake City, Utah.

On December 19, 1940, plaintiff filed motion, verified under oath. In this motion it is shown that plaintiff and the minor children are domiciled in the State of Virginia and the children are not within the jurisdiction of the Courts of Florida and prayed that the order of reference be limited to the question of support and maintenance money for the benefit of the minor children and that no reference be made on the question of the custody of the minor children.

On December 20, 1940, the court denied plaintiff's motion to limit the order of reference. Upon the Chancellor inquiring concerning the truth of the allegations of plaintiff's motion, and counsel for defendant neither admitting nor denying the truth of such allegations, the plaintiff ore tenus made a motion requesting a preliminary reference on the questions of domicile if any issue in fact existed upon such question. The Court held that the Circuit Court of Duval County, Florida, has jurisdiction of the custody of the minor children, even though the plaintiff and the minor children are lawfully domiciled in the State of Virginia, and made an order referring the cause to a Special Master on the issues including the right to custody of the children.

The orders of the Chancellor holding that the Circuit Court of Duval County, Florida, regardless of and even though the children are domiciled not in Florida but in a sister State, are challenged here on petition for certiorari under Rule 34 of this Court.

Petitioner poses two questions for our consideration, as follows: 'Does a Florida Chancery Court have jurisdiction of the custody of minor children who are citizens of and domiciled in a sister State and who are physically present in a sister State and not in the State of Florida?

'Where the father of minor children is domiciled in and physically present in the State of Utah and both the mother and the minor children, whose exclusive custody has previously been awarded to the mother by a Florida Chancery Court in a divorce suit, are domiciled in and physically present in the State of Virginia, should the Florida Chancery Court thereafter decline to exercise jurisdiction over the custody of the minor children upon principles of comity and propriety?'

This is a case of first impression in this Court under factual conditions presented here. After a careful review of the authorities, we reach the conclusion that the motion of the plaintiff supra, praying that the present domicile of the children be determined by the Court, should have been granted and that question should have been determined before the court attempted to exercise its challenged jurisdiction over the custody of the childen because an infant is the ward of the court having jurisdiction of the person of such infant. See 31 C.J. 988, Sec. 6, wherein it is said:

'The courts of the state wherein the child legally resides should determine conflicting claims as to his custody, and the courts of another state are without power in the premises and cannot obtain jurisdiction for such purpose over persons temporarily within the state. However, if the child is actually within the jurisdiction of the court, although his legal domicile is elsewhere, the court may determine conflicting claims as to his custody.'

See also case cited in note following text.

It must be borne in mind that in the final decree of divorce the court did not reserve jurisdiction to modify or change the order awarding the custody of the children to the mother. We cannot agree with the contention of the respondent that the jurisdiction over the mother to determine the question of modification of the decree as to maintenance and support of the children carries with it jurisdiction of the person of the children domiciled in a sister state so as to place them in the custody of the father who is domiciled in still another sister state.

We think it untenable to assume that in a case where a father is domiciled with his minor children in Ohio where the children remain and where the mother acquires and establishes a separate residence in Florida and files suit for and procures divorce, that the Florida court would have jurisdiction to award the custody of such minor children to the custody of the mother in Florida.

In awarding custody of minor children, the first consideration to be observed is the welfare of the children and that welfare must be determined by a court having jurisdiction of the children.

It, therefore, does not follow that when a court of chancery assumes jurisdiction in divorce proceedings, it may always proceed with the determination of all matters in controversy between the parties. The rule is that:

'Where a court of equity takes jurisdiction of a case for one purpose it will proceed with the determination of all the matters properly presented and will grant full relief.' See Oyama v. Oyama, 138 Fla. 422, 189 So. 418, 421, 122 A.L.R. 526.

A court must not only have jurisdiction of the parties but it must have jurisdiction of the subject matter also. The subject matter involved in the question of custody of minor children is the children themselves, and if the court has not jurisdiction of the children it has not jurisdiction of the subject matter to determine the right of custody as between the parties to the suit over which it may have jurisdiction.

Neither the case of Minick v. Minick, 111 Fla. 469, 149 So. 483, 491, or Duke v. Duke, 109 Fla. 325, 147 So. 588, are in point. In neither case was the question of jurisdiction over the custody of children domiciled outside the State of Florida involved.

In the Minick case the record showed that the father of the minor child was domiciled in Osceola County, Florida, and that the mother had, without consent of the father, taken the child to a sister state. The domicile of the child, in law, was the domicile of the father and it was held that the legal domicile of the child remained in Osceola County, Florida.

In the case of State ex rel. Rasco v. Rasco, 139 Fla. 349, 190 So. 510, it was held:

'A court granting divorce on constructive service against wife outside court's jurisdiction with spouses' minor child has no authority to award child's custody to husband.'

In the same case it was also held:

'A decree awarding custody of divorced parents' minor child outside...