Hajovsky v. Hajovsky
| Citation | 159 So.2d 194,276 Ala. 77 |
| Decision Date | 20 December 1963 |
| Docket Number | 6 Div. 666 |
| Court | Alabama Supreme Court |
| Parties | Louis J. HAJOVSKY v. Ruby C. HAJOVSKY. |
Martin, Vogtle, Balch & Bingham and Robt. C. Collins, Birmingham, and Elbert R. Jandt, Sequin, Tex., for appellant.
Rogers, Howard, Redden & Mills, Birmingham, for appellee.
Appeal from decree of the circuit court of Jefferson County, in equity, awarding custody of two minor children to the mother (appellee).
On January 21, 1957, appellant, the father of the children, filed a petition in the Juvenile and Domestic Relations Court of Jefferson County (Code 1940, Tit. 62, § 310 et seq.) seeking their custody. The petition alleged that petitioner, by decree of the District Court of Hayes County, Texas, 22nd Judicial District, rendered on January 14, 1957, was awarded custody. The petition was denied, the appellee being awarded custody. Petitioner (appellant) then appealed to the circuit court of Jefferson County, in equity, for a trial de novo, pursuant to Code 1940, Tit. 62, § § 307, 317. The circuit court, after an oral hearing of the evidence, rendered the decree appealed from.
Appellee obtained a divorce from appellant in the Texas court on February 7, 1955. The decree also awarded her custody of the children. On April 19, 1955, appellant filed a petition in the Texas court seeking a modification of the February 7th decree so as to give him custody. The record shows service of the petition on appellee on April 19, 1955. According to appellee's testimony, she was verbally instructed by the judge of the Texas court not to take the children out of San Marcos, Texas, where the parties had been living. Apparently, there was no formal court order to that effect. In December, 1956, before a hearing on the modification petition, appellee left Texas with the children and moved to Birmingham. The Texas court, on January 14, 1957, after a hearing on the petition, modified the original decree by awarding custody to appellant. The original decree gave visitation rights to appellant and the modification decree gave visitation rights to appellee. Appellee filed no answer to the petition for modification; nor did she make any other appearance in the modification proceeding.
As already shown, appellant filed his petition for custody in the Jefferson County Juvenile and Domestic Relations Court on January 21, 1957, after rendition of the modification decree of January 14, 1957.
Appellant's position is that he is entitled to custody by virtue of the Texas decree of modification, there being no showing of an emergency as to the immediate welfare of the children which would authorize the Alabama court to determine the children's custody contrary to the Texas decree.
Appellee takes the position that the Texas decree is of no effect here because this proceeding was brought under the provisions of Code 1940, Tit. 62, § 310 et seq., supra, which deals with 'dependent, neglected, or delinquent children'; that, even if full faith and credit should be given a foreign decree in determining custody under said statutes, the Texas decree in this instance can have no effect because appellee had no notice of the modification proceeding before that court.
Our conclusion is that the Texas decree is of controlling effect and that the trial court erred in awarding custody to appellee.
Appellee apparently agrees that there was no showing of an emergency as to the immediate welfare of the children. As stated in her brief:
'* * * [T]he facts and circumstances involved upon this appeal do not involve a matter of 'emergency' * * *.'
Although the Juvenile and Domestic Relations Court deals with 'dependent, neglected, or delinquent' children, Section 311. Tit. 62, defines a 'dependent child' as meaning:
'* * * [A]ny male child, who while under sixteen years of age, or any female child who while under eighteen years of age, residing or being in such county, for any reason, is destitute, homeless, or is dependent on the public for support; or whose parent, or parents, for good cause, desire to be relieved of its care and custody; or who is without a parent or guardian able to provide for his or her support, training and education; or whose custody is the subject of controversy, or who is mentally defective, or mentally distorted. * * *' [Emphasis supplied.]
This proceeding involves children 'whose custody is the subject of controversy.' Accordingly, the Juvenile and Domestic Relations Court and the Circuit Court, in equity, had authority to determine which party should have custody.
The record contains an authenticated copy of the decree to the Texas court modifying its original decree and also an authenticated copy of the sheriff's return of service on appellee of a true copy of appellant's petition and a citation to appellee to appear and answer said petition.
The only evidence offered by appellee challenging the Texas court's jurisdiction was her testimony that she received no notice of the modification proceeding. What was said in Howard v. Drinkard, 261 Ala. 555,...
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