Lumpkin v. Meeks

• Decision Date: 22 September 1955
• Docket Number: 7 Div. 289
• Citation: 82 So.2d 535,263 Ala. 395
• Parties: John LUMPKIN v. W. F. MEEKS and Mildred Lumpkin.
• Court: Alabama Supreme Court

Page 535

82 So.2d 535

263 Ala. 395

John LUMPKIN v. W. F. MEEKS and Mildred Lumpkin.

7 Div. 289.

Supreme Court of Alabama.

Sept. 22, 1955.

Chas. Thomason, Anniston, for appellant.

Merrill & Merrill, Heflin, for appellees.

MAYFIELD, Justice.

This is an appeal from a decree of the Circuit Court of Cleburne County, in equity, denying a petition for writ of habeas corpus to obtain custody of appellant's eight year old son.

The procedure in this case was unusual and somewhat irregular. The petition which purports to be for habeas corpus was filed in equity, with the register. For many years in Alabama, in proper cases, questions of custody have been determined by the dual method of petition in equity or habeas corpus. While it is fundamental that petitions for habeas corpus in the circuit court are filed with the clerk of that court and heard as actions at law it is equally true that all matters affecting the custody of infants are inherent within the jurisdiction of chancery courts. Powell v. Johnson, 213 Ala. 259, 104 So. 525.

It should be observed that a petition for habeas corpus is addressed to the judge rather than to the court. Historically, a Chancellor had the power to issue writs of habeas corpus. While indisputably in Alabama habeas corpus is an appropriate remedy to determine the custody of children, such petitions are treated as actions at law.

In the instant case, both the court and the parties proceeded on the theory that it was proper to file the petition for writ of habeas corpus with the register in chancery and make an equitable proceeding out of this cause. We do not approve this procedure. However, this point was not raised in the lower court nor do the parties call it to our attention on this appeal. A somewhat similar situation was presented in the case of Berry v. Berry, 219 Ala. 403, 404, 122 So. 615, 616. The pleading in this cause was denominated a petition for a writ of habeas corpus. In this case Judge Brown said:

'It appears, however, that the proceeding was treated as one in equity, the testimony taken ore tenus was reduced to writing, and all of the evidence was noted by the register as in equity cases. Allison v. Cox et ux., supra. This being the state of the case, and the jurisdiction of the court having been invoked by the appellant, he is not in a position to question the court's jurisdiction to proceed according to equitable principles. Hamilton v. Watson, 215 Ala. 550, 112 So. 115.'

We have had recourse to the original record in the above cited case and find that although the pleading was denominated a petition for habeas corpus, the cause was filed with the register and treated through out as an equitable proceeding.

We again approve the general rule that in proceedings to determine the custody of children, technicalities will be overlooked unless they are controlling. Glenn v. Glenn, 21 Ala.App. 148, 106 So. 226, certiorari denied In re Glenn, 214 Ala. 6, 106 So. 229. Further, whenever possible, causes should be reviewed by this court on the same issues that were presented to the trial court. Let it suffice to say that the petition in this cause was sufficient to invoke the jurisdiction of the equity court and as no objection was made below to the form of the petition and the parties submitted to the jurisdiction of the equity court, we will not avoid this proceeding on appeal.

The appellant John Lumpkin, the petitioner below, was formerly the husband of Mildred Lumpkin, one of the appellees. The other appellee, W. F. Meeks is the father of Mildred Lumpkin. Both John and Mildred Lumpkin are domiciliaries of the State of Georgia. They obtained a divorce on 9 April 1954, from the Carroll County Superior Court of Georgia. The divorce decree provided that Mildred Lumpkin have the custody of their minor child Larry Wayne Lumpkin, age seven, and that the father be required to contribute $15 weekly for his support and maintenance.

Approximately a month after the rendition of the decree of divorce in Georgia, Mildred Lumpkin brought the child to the home of her father in Cleburne County, Alabama. Since that time, the child has resided in the home of its maternal grandfather, W. F. Meeks, who is the other appellee in this cause.

In October, 1954, John Lumpkin filed his petition for writ of habeas corpus in the Carroll County Superior Court of Georgia seeking to obtain exclusive custody of his minor son. This petition was denied; the court, however, granted the custody of the child to John Lumpkin for one weekend each month so long as alimony payments were paid up to date.

The cause which we here review, was brought by the appellant to obtain custody of his child on the grounds that the child was not being properly cared for and the environment of the maternal grandfather's home in Alabama is not suitable or proper for a body of tender and impressionable age. As to this contention, the Chancellor found otherwise in his decree. It is further contended by appellant that the placing of the child in the care of its grandfather is a sufficient change of circumstance to warrant a new decree by this court in reference to the custody of...