Ferguson v. State
| Decision Date | 17 February 1949 |
| Docket Number | 6 Div. 740.,6 Div. 739 |
| Citation | 251 Ala. 645,38 So.2d 853 |
| Parties | FERGUSON v. STATE ex rel. FERGUSON v. FERGUSON et al. |
| Court | Alabama Supreme Court |
W L. Longshore, of Birmingham, for appellant.
Morel Montgomery and Wm. Conway, both of Birmingham, for appellee.
The fundamental question presented on this appeal relates to the jurisdiction of the Circuit Court of Jefferson County, in Equity, to award the custody of a girl three years old, the child of the parties to this cause.
Howard Ferguson (appellant), a resident of Portsmouth, Virginia married Margaret Boarman (Ferguson) on November 29, 1943, in Birmingham, Jefferson County, Alabama. Margaret Boarman Ferguson went to Virginia to live with her husband and became a resident of the State of Virginia and continued to be a resident there living with Howard Ferguson as his wife. Prior to October 3, 1945, a child, Patricia Lee Ferguson, was born and on the 3rd of October, 1945, while Margaret Boarman Ferguson was a resident of the State of Virginia, she filed a suit for divorce in Norfolk County, Virginia, against Howard Ferguson on the ground of cruelty and in her suit asked for the custody of the child. A hearing was had on the original bill filed by Margaret Boarman Ferguson and on the cross-bill filed by Howard Ferguson, oral testimony being taken before the court on the 3rd day of December, 1945. After the testimony was taken as aforesaid and before the court rendered a decree Margaret Boarman Ferguson left the State of Virginia and brought the child to the State of Alabama and took up residence with her parents in Birmingham, Alabama.
Tendencies of evidence show that after the suit for divorce was filed in the State of Virginia and after the testimony was taken on December 3, 1945 in that proceeding, Howard Ferguson assaulted Margaret Boarman Ferguson and threatened both her and the child and as a result of fear of bodily harm to herself and her child thereby created, the mother brought the child with her to Birmingham on December 13, 1945. At that time the child was six months of age.
On the 14th day of February, 1946, the Circuit Court of Norfolk County, Virginia, rendered a decree in the aforesaid proceedings. In that decree the court found that Margaret Boarman Ferguson was not entitled to the relief prayed for in her bill but rendered a divorce a mensa et thoro in favor of Howard Ferguson and provided in the decree that Margaret Ferguson should have the care and custody of the child for six months beginning December 3, 1945, and that Howard Ferguson should have the custody of the child for six months to begin six months from December 3, 1945, alternating the custody each six months thereafter.
On July 8, 1947, Howard Ferguson filed a petition in the Juvenile and Domestic Relations Court of Jefferson County, Alabama seeking the custody of the child. Tendencies of the evidence showed that on July 4, 1947, after he had come to Birmingham, Alabama, he had threatened to kill the mother and the child, as a result of which she instituted peace proceedings. The petition so filed alleged among other things that the child is a resident of Jefferson County, Alabama, that its domicile is with its mother in Jefferson County, Alabama, that the child is dependent, neglected and in need of the care and protection of the courts, its morals endangered as well as its health and welfare. The Juvenile and Domestic Relations Court of Jefferson County, Alabama, rendered a decree giving full faith and credit to the decree of the court in Virginia and directing Margaret Boarman Ferguson to deliver the child to Howard Ferguson, the petitioner, to be returned to the jurisdiction of the Circuit Court of Norfolk County, Virginia. Margaret Boarman Ferguson thereupon took an appeal to the Circuit Court of Jefferson County, in Equity, and there the case was tried de novo with the witnesses testifying orally before the court.
After the case was tried in the Juvenile and Domestic Relations Court of Jefferson County and before it was tried in the Circuit Court, in Equity, a decree was rendered in the cause filed in Virginia granting Howard Ferguson a final and absolute decree of divorce from Margaret Boarman Ferguson on the ground of desertion. The decree was dated October 10, 1947, and in addition to granting the divorce awarded the custody and control of the child of Howard Ferguson. The decree appears to be based on the evidence before the court when the decree of February 14, 1946, was rendered, plus a showing that Howard Ferguson had not cohabited with Margaret Boarman Ferguson since such decree.
On the hearing of the case before the Circuit Court of Jefferson County, in Equity, the aforesaid decrees of the Virginia Court...
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