Huffman v. Griffin

• Decision Date: 28 September 1976
• Docket Number: No. 48601,48601
• Court: Mississippi Supreme Court
• Parties: John B. HUFFMAN v. Janice GRIFFIN.

Page 715

337 So.2d 715

John B. HUFFMAN v. Janice GRIFFIN.

No. 48601.

Supreme Court of Mississippi.

Sept. 28, 1976.

Harry Lanier Foote, Jackson, for appellant.

Johnston & Adams, Brandon, for appellee.

Before INZER, P.J., and SUGG and WALKER, JJ.

SUGG, Justice, for the Court:

Janice Griffin, petitioner, filed a petition for writ of habeas corpus in the County Court of the First Judicial District of Hinds County against John B. Huffman, respondent, for the custody of Tammy Gene Huffman, the daughter of the parties who was born on July 12, 1970. Petitioner was awarded custody of the child and the appeal by respondent presents the following questions.

(1) Was an Alabama decree awarding custody of the child entitled to full faith and credit? (2) Did a child custody suit pending in chancery court deprive the county court of jurisdiction to hear the petition for writ of habeas corpus? (3) Did the habeas corpus court have jurisdiction when the child, whose custody was the subject matter of the suit, was physically absent from the state when the petition was filed and process issued, but was returned to the state by respondent before the hearing was concluded because the court threatened to punish him for contempt if he did not return the child to the state for the habeas corpus hearing? (4) Did the trial court err in holding that there had been no material and substantial change in circumstances requiring a modification of the Alabama decree of October 17, 1973?

I

WAS AN ALABAMA DECREE AWARDING CUSTODY OF THE CHILD ENTITLED TO FULL FAITH AND CREDIT?

Petitioner and respondent were formerly husband and wife and resided in Hinds County, Mississippi. About April 2, 1973, petitioner separated from respondent and carried the child of the parties with her to Coffee County, Alabama. She filed a bill of complaint in equity in the Circuit Court of Coffee County on April 4, 1973, seeking custody of the child and the exclusive use of an automobile. An order was entered on April 4 awarding petitioner custody of the child and exclusive use of an automobile pending final hearing of the cause.

On May 14 petitioner amended her bill of complaint and prayed for a divorce and support for the child. On the same day respondent filed an answer, waiver, consent, and a separation agreement executed by both parties. On the following day, May 15, the Alabama court granted petitioner a divorce from respondent. In addition to granting petitioner a divorce the decree contained the following provision:

'It is further ordered, adjudged and decreed by the Court that the agreement of the parties hereto be, and the same hereby is, incorporated into and made a part of this decree.

On September 17, 1973, respondent filed a motion to modify the decree of May 15, and alleged that petitioner was no longer a fit and proper person to have the care and custody of the child. Petitioner filed an answer and petition for rule nisi on October 16. On October 17 the circuit court heard evidence on the motion to modify, motion for rule nisi and answer. The court denied the relief sought by each party on its finding that there had been no material and substantial change in the circumstances of the parties since it decree of May 15.

This action of the court left in effect the custody provision of its former decree which awarded custody of the child to petitioner and required respondent to pay $125 per month child support. In odd numbered years respondent was to have the right to have the child visit him at his residence from June 15 to July 15 and in even numbered years for twenty-one days beginning on June 15 plus one week during Christmas. Respondent was also given the right to weekly visits with the child at reasonable times and places.

Respondent contends that the Alabama decree awarding custody of the child of the parties is not entitled to full faith and credit. This contention is based on the requirement of Section 29, Title 34, Alabama Code of 1940 (1973 Supp.) that a bill for divorce, when the defendant is a non resident, must allege that the complainant has been a bona fide resident of Alabama for six months before filing the bill. The failure of the petitioner to allege and prove that she had been a resident of Alabama for six months next before the filing of the bill causes the divorce decree to be invalid and subject to being set aside on collateral attack. McGough v. McGough, 47 Ala.App. 709, 261 So.2d 49 (Ct.Civ.App.1971), cert. den., 288 Ala. 746, 261 So.2d 53 (1972). ¹

Because the divorce decree of May 15, 1973, is invalid and subject to collateral attack for the reasons stated in McGough, supra, it does not follow that the portion of the decree awarding custody of the child should not have been accorded full faith and credit by the Mississippi court. The rule in Alabama is that divorce decrees are divisible when custody of children is involved. In Stallworth v. Stallworth, 272 Ala. 449, 131 So.2d 867 (1961), the Supreme Court of Alabama held that a decree of divorce was void for want of jurisdiction, but refused to invalidate the custody provisions of the decree. The Court stated:

While we have condemned the portion of the court's decree which awarded the divorce, this does not necessarily require us to invalidate the entire decree. Avery Freight Lines Inc. v. Persons et al., 250 Ala. 40, 32 So.2d 886. It is true that the court appears to have proceeded under the authority of § 35, Title 34, Code of 1940, to make an award of the custody of the children to the complainant. But this court has said that regardless of the statute, 'whenever the welfare of the children is concerned and the jurisdiction of the court is invoked, the court has an inherent power to enter a decree for their custody and support.' Butler v. Butler, 254 Ala. 375, 377, 48 So.2d 318, 319. (131 So.2d at 870).

Calhoun v. Calhoun, 46 Ala.App. 381, 243 So.2d 37 (1970) held that custody provisions in a divorce decree were enforceable although the divorce was not valid because the bill of complaint failed to aver that the plaintiff was a resident of the state for more than one year before filing the bill of complaint. ²

(T)he bill of complaint, while praying for divorce, also contained averments as to the custody and support of the children, sufficient to invoke the jurisdiction of the court for that purpose. The original order of the court of December 17, 1965, found and accepted jurisdiction only for that purpose. The decree of June 13, 1966, was in fact, only for temporary support of the children.

It has long been settled in this state that a court of equity is the inherent guardian and protector of minor children within its jurisdiction, and no technical requirements of pleading are necessary to invoke such jurisdiction. Stallworth v. Stallworth, 272 Ala. 449, 131 So.2d 867; Butler v. Butler, 254 Ala. 375, 48 So.2d 318; Scott v. Scott, 247 Ala. 598, 25 So.2d 673. (243 So.2d at 40).

The Alabama divorce decree is divisible, and although the divorce awarded by the decree may be subject to collateral attack, the portion of the decree dealing with child custody is valid and is not subject to collateral attack. Where a party appears in a case and is accorded full opportunity to contest the issues, including jurisdictional issues, the doctrine of res judicata may be applied to questions of jurisdiction arising in the case involving the full faith and credit clause where, under the law of the state in which the original judgment was rendered, such adjudication is not susceptible to collateral attack. Coe v. Coe, 334 U.S. 378, 68 S.Ct. 1094, 92 L.Ed. 1451 (1945). We therefore hold that the custody and support provisions of the Alabama decree were not subject to collateral attack and the trial court properly accorded full faith and credit to the decree.

II

DID A CHILD CUSTODY SUIT PENDING IN CHANCERY COURT DEPRIVE THE COUNTY COURT OF JURISDICTION TO HEAR THE PETITION FOR WRIT OF HABEAS CORPUS?

On July 9, 1974, petitioner filed a petition for writ of habeas corpus in the County Court of the First Judicial District of Hinds County against respondent seeking custody of the child of the parties. Respondent filed a motion to dismiss the petition for writ of habeas corpus on several grounds, one being that there was pending in Hinds County Chancery Court a child custody suit filed by respondent against petitioner. The motion averred that the chancery court suit was filed and process served prior to the filing of the petition for writ of habeas corpus. Respondent identified a copy of a petition for child custody filed by him July 1, 1974, under the provisions of Mississippi Code Annotated section 93-11-65 (1972), but did not show that process had been issued or served in the chancery court case.

This motion raises the issue of priority jurisdiction between courts of concurrent jurisdiction. The principal of priority jurisdiction is that where two suits between the same parties over the same controversy are brought in courts of concurrent jurisdiction, the court which first acquires jurisdiction retains jurisdiction over the whole controversy to the exclusion or abatement of the second suit. Lee v. Lee, 232 So.2d 370, 373 (Miss.1970); Ladner v. Ladner, 206 So.2d 620, 625 (Miss.1968); 20 Am.Jur.2d Courts § 128, at 481 (1965); 1 C.J.S. Abatement and Revival § 33, at 58-59 (1936); 21 C.J.S. Courts § 492, at 745 (1940).

In this state priority of jurisdiction between courts of concurrent jurisdiction is determined by the date the initial pleading is filed, provided process issues in due course. Euclid-Mississippi v. Western Casualty and Surety Company, Inc., 249 Miss. 547, 559-60, 163 So.2d 676 (1964); Shackelford v. New York Unverwriters Insurance Company, 189 Miss. 396, 407-08, 198 So. 31 (1940); Mississippi Code Annotated sections 11-7-33 and 11-7-1 (1972).

In order for respondent to prevail on his motion to dismiss it was necessary that he prove, not only that he had filed a...