Ex parte Fletcher

• Decision Date: 12 May 1932
• Docket Number: 4 Div. 624.
• Citation: 142 So. 30,225 Ala. 139
• Parties: EX PARTE FLETCHER.
• Court: Alabama Supreme Court

142 So. 30

225 Ala. 139

EX PARTE FLETCHER.

4 Div. 624.

Supreme Court of Alabama

May 12, 1932

Rehearing Denied June 9, 1932.

Original petition of Dewey E. Fletcher, as guardian of Helen Fletcher and Frances Fletcher, minors, for mandamus to Hon. Emmet S Thigpen, as Judge of the Circuit Court of Covington County.

Writ awarded.

A Whaley, of Andalusia, for petitioner.

Powell Albritton & Albritton, of Andalusia, for respondent.

FOSTER J.

The parents of two girls (6 and 11 years of age) both died, the mother some 3 years before the father. He owned a comfortable home, well furnished, in Andalusia, and, with a housekeeper engaged by him, maintained the home until his sudden death. From the funeral the children went with their maternal aunt to her home with her husband's mother, for which no blame is charged. One of them needed and received medical attention. Their maternal grandparents, a respected Baptist minister and his wife, resided in Mobile and attended the funeral and remained several days. There was negotiation as to their custody and financial affairs which continued for several days not resulting in agreement, and until December 2d, when petitioner was appointed their guardian by the probate court at Andalusia. On the next day about noon, Dr and Mrs. Preston, the grandparents, left Andalusia for their home, taking both the children, where they still are detained.

On the same day, and as soon as the guardian was informed of their departure, a bill in equity was filed by him to restore their custody to him as their guardian for residence in their own home. Petitioner then presented a petition to the court to require respondents to return the children to Andalusia and to their home under the supervision of petitioner, pending a hearing of the cause. Upon a denial of such petition, complainant seeks to review the ruling by mandamus. There is no other adequate method of review, and we have entertained a petition for mandamus to review when petitioner claims the right of immediate relief pending a suit in equity, and there is no other appropriate method of reviewing the action of the court in respect to such claim. Ex parte Green, 221 Ala. 298, 129 So. 72, where the cases are cited; also in Ex parte Green, 221 Ala. 415, 129 So. 69.

By section 8096, Code, guardianship carries no right to the custody of infants during the life of the father; or if the ward is a girl, or a boy under 14, during the life of the mother. Otherwise the general rule is that guardianship by an individual (not a corporation) carries with it the custody of the ward's person in priority to relatives and friends, unless her interest will be better otherwise cared for. 1 Schouler on Domestic Relations (6th Ed.) § 873; 28 Corpus Juris 1109, 1110; Desribes v. Wilmer, 69 Ala. 25, 31, 44 Am. Rep. 501. But always the controlling consideration is the best interest of the child while still recognizing a priority of right where the law has placed it. Payne v. Payne, 218 Ala. 330, 118 So. 575.

The domicile of the father at the time of his death is the domicile of the infant child. If a guardian has been there appointed, no one, not even its mother, though living, can change such domicile without the consent of the guardian, and the court, Moses v. Faber, 81 Ala. 445, 449, 1 So. 587; Desribes v. Wilmer, 69 Ala. 25, 31, 44 Am. Rep. 501; Carlisle v. Tuttle, 30 Ala. 613; Daniel v. Hill, 52 Ala. 430; Johnson v. Copeland, 35 Ala. 521, and in compliance with the statute, section 8231, Code; Desribes v. Wilmer, supra; Daniel v. Hill, supra; Johnson v. Copeland, supra; Moses v. Faber, supra; Randall v. Wadsworth, 130 Ala. 633, 31 So. 555. To the person of the ward, in the absence of parents, the guardian, who is not a corporation, is placed in loco parentis. Desribes v. Wilmer, supra; Murphree v. Hanson, 197 Ala. 246, 72 So. 437.

A court of equity in which jurisdiction of the person of the infant is acquired has exclusive right to pursue an exercise of such jurisdiction not affected by the subsequent residential status of the infant or its custodian. Lassiter v. Wilson, 207 Ala. 669, 93 So. 598; Burns v. Shapley, 16 Ala. App. 297, 77 So. 447.

While the evidence on the hearing was given orally in open court the result...