Little v. Little

• Decision Date: 01 May 1947
• Docket Number: 1 Div. 275.
• Citation: 249 Ala. 144,30 So.2d 386
• Parties: LITTLE v. LITTLE.
• Court: Alabama Supreme Court

30 So.2d 386

249 Ala. 144

LITTLE v. LITTLE.

1 Div. 275.

Supreme Court of Alabama

May 1, 1947

D. R. Coley, Jr., of Mobile, for appellant.

Hybart & Chason, of Bay Minette, for appellee.

FOSTER Justice.

The primary question on this appeal relates to the jurisdiction of the Circuit Court, in Equity, of Mobile County to award the custody of a girl child of the parties who is seven years old.

The suit was begun November 18, 1943, by the wife by filing a bill in equity in Mobile County, praying for a divorce and for the custody of the child, alleging abandonment by respondent of complainant in May, 1941. On August 17, 1944 she filed an affidavit that respondent entered the military service of the United States in 1942, and is located in Florida at the Pinellas Army Base at St. Petersburg. On September 16, 1944, respondent made a special appearance questioning the sufficiency of the affidavit in respect to his military service. And on the same day, respondent by his counsel filed a special and limited appearance calling attention to the fact that he is in the Armed Services, and not in position to defend his suit, and moved the court to hold in abeyance any action relative to the same until such time as he may be discharged from the Army.

Nothing appears to have been done in respect to the case so far as the record shows until August 9, 1946, when an answer and cross-bill was filed by the respondent seeking divorce from the complainant on the ground of abandonment of him by her and alleging that the complainant had carried the child from place to place without letting him know where she was living and where the child was being kept, and refused to let him visit the child, and that he is a fit person to have the care and custody of the child; and she has left it with her mother, and has not properly looked after and cared for her. He seeks a divorce and the custody of the child.

On September 6, 1946, the complainant by her solicitor filed an answer to the cross-bill denying its material allegations, and praying for a hearing of the cause, and that a decree be rendered divorcing her from the respondent, and granting to her the custody of the child. On September 20, 1946, the respondent, cross-complainant, made a motion to set the cause down for trial. Thereupon the court ordered it set for October 8, 1946, and on that day, the complainant and cross-respondent filed a plea to the jurisdiction of the Mobile Circuit Court, in Equity, on account of matters therein alleged to have occurred in Louisiana with respect to the custody of the child in so far as the cross-bill of respondent is concerned, and praying that the cross-bill be dismissed. On that day, October 8, 1946, there appears an order to the effect that the cause is submitted on defendant's plea in abatement, and upon being considered, it is ordered that said plea be and it is hereby refused; and on the same day the complainant caused an order to be made dismissing her original bill.

From the final decree granting relief to respondent on his cross-bill by dissolving the bonds of matrimony, and awarding to him the custody of the child, the complainant appeals and assigns, among others, the ruling of the court refusing the plea in abatement filed by complainant and cross-respondent.

No question is here raised as to the manner in which the sufficiency of the plea is submitted and determined, or the fact that it is a plea in bar, and not in abatement, as is termed by the order of the court. The proper method of testing the sufficiency of a plea is to set it down for hearing and have the court make an order as to whether it is sufficient. Bullen v. Bullen, 231 Ala. 192, 163 So. 89.

Notwithstanding the informality of the order with respect to this plea, we will treat it as the parties do, holding that it is a compliance with the rule fixing the manner in which its sufficiency must be tested in equity.

It appears from the plea that since the filing of the bill of complaint, complainant was compelled to remove her residence from Alabama, and then became a resident of Louisiana because she was forced to work, and her mother lived there in New Orleans where she had worked previously, and the child was left with the actual care of her mother in New Orleans while she did her work. That the child has been in their custody in New Orleans, and within the jurisdiction of that court since she removed to Louisiana, and is no longer in the state of Alabama, and never has been since the filing of the answer and cross-bill by the respondent; and that on July 29, 1946, which was prior to the filing of the cross-bill by respondent in Mobile County, the respondent filed a petition in the Civil District Court of the Parish of Orleans, alleging the facts as to their relationship and the abandonment of him by his wife, and that the wife had recently left New Orleans and established a permanent home in Los Angeles, leaving the custody and care of the child with Mrs. Franklin, his wife's mother, who is a resident of New Orleans, and who then had the custody of the child, and that the child is not being properly cared for; and that he was discharged from the Army in December 1945, and he desired to have the care and custody of his child, and the respondent, who is Mrs. Franklin, has refused to return her to him, and she is presently being detained and deprived of her liberty by Mrs. Franklin, and that Mrs. Franklin is planning to move to Mississippi, taking the child with her, and thus removing her from the jurisdiction of the courts of Louisiana. He prays for a writ of habeas corpus, and upon a hearing that the child be released and restored to liberty and returned to him, and that a restraining order be entered enjoining Mrs. Franklin from removing the child from the jurisdiction of the court. Upon that petition a restraining order was made and executed, and habeas corpus issued.

Before the hearing was had on the petition, the complainant in the case in Alabama, the wife of respondent through her counsel, filed a petition in the Civil District Court of the Parish of Orleans, setting up the same facts with respect to their family relationship and the child, alleging that her husband was not a fit person to care for the child (he then did not have her custody), and that she is entitled to the permanent care and custody of the child, which she then had, and entitled to alimony and support of the child, and prayed for a decree of separation a mensa et thoro, and awarding her the care and custody of the child and permanent alimony.

On September 18, 1946, the respondent, her husband, by his counsel, filed a special appearance for the purpose of objecting to the rule to show cause seeking the custody of the minor child on the ground that the court had no jurisdiction of the matter, without giving any details as to why the court had no jurisdiction, and praying that the matter be dismissed.

On September 26, 1946, the court took jurisdiction as to the temporary care and custody of the child, and appointed the complainant, its mother, as the custodian pending the final disposition of the exceptions filed to the jurisdiction of the court; and on September 30, 1946, on motion of said complainant, the court ordered that both proceedings, towit, the petition of Mrs. Little for divorce a mense et thoro and the custody of the child, and the petition of Mr. Little against Mrs. Franklin for habeas corpus, 'be and they are hereby consolidated.' Compare Ex parte Bates, 247 Ala. 391, 24 So.2d 421. No further action has been taken in Louisiana with respect to those matters, and the plea of complainant to the cross-bill filed in Mobile is based upon those matters, the contention being that the child having been carried by the complainant to Louisiana, and residence having been established there, the jurisdiction of the Mobile Circuit Court was thereby destroyed, and the jurisdiction of an appropriate Louisiana court was established. Compare Ex parte White, 245 Ala. 212, 16 So.2d 500.

Having held the plea to be insufficient, the Mobile Circuit set the cause down for hearing on the cross-bill and on the answer to the cross-bill, which the complainant had previously filed and testimony given in open court. On that hearing, the cross-complainant offered witnesses: the cross-respondent, who is the original complainant, was represented by counsel who cross-examined those witnesses, but offered no testimony, and neither she nor the child was personally present so far as the record shows.

So that, as we noted at the outset, the primary questions is whether or not the Alabama court, in equity, continued to have jurisdiction with respect to the custody of the child.

Upon consideration of that question, we have to take the allegations of the plea as being true. The most favorable aspect to the complainant is that her husband being in the Army, and no allotment having been made for her on account of his service, she was compelled to work and to go to New Orleans for that purpose, and carried the child with her and there established a residence. The plea does not allege or deny that she has left New Orleans to go to Los Angeles, as is alleged by her husband in one of his pleadings. So for the purpose of determining the sufficiency of the plea, we will presume that the residence of Mrs. Little with the child continued in New Orleans.

The question presents a very interesting inquiry, since there are two principles involved, which, on first appearance, seem to be conflicting, but which, of course, cannot be conflicting when properly analyzed. The first principle is that jurisdiction of the court in Alabama, when once...