Moss v. Ingram
| Decision Date | 14 December 1944 |
| Docket Number | 1 Div. 225. |
| Citation | 20 So.2d 202,246 Ala. 214 |
| Parties | MOSS v. INGRAM. |
| Court | Alabama Supreme Court |
W. C Taylor, of Mobile, for appellants.
Alex T Howard, of Mobile, for appellee.
The answer of defendant makes as exhibit thereto a transcript of adoption proceedings in the Chancery Court of Jackson County Mississippi. The petition recites:
'Now comes Mary Ellen Mott, a minor who will be three years of age on July 10, 1943, by J. L. Moss, her next friend; and J. L. Moss an adult resident citizen of Jackson County, Mississippi, and would with respect, represent and show unto this Honorable Court the following, to-wit;' that the minor petitioner has been raised and cared for by adult petitioner since she was six months of age, with full consent and knowledge of minor petitioner's mother and by William Mott, the husband of her mother; that William Mott and minor petitioner's mother were divorced in Mobile County, Alabama, in September, 1942, and the care and custody of minor petitioner was, by decree entered in said cause, awarded to minor petitioner's mother; the minor petitioner, however, having actually been in the care and custody of adult petitioner since the first of the year 1941; that adult petitioner is a resident citizen of the City of Moss Point, Jackson County, Mississippi, to which place he came more than a year previously from his original home in Alabama, and owns and operates property in Moss Point; 'that since the divorce hereinabove referred to, the minor petitioner's mother has gone to some place in the West, and has remarried'; that 'petitioners seek the adoption of the minor petitioner by your adult petitioner, and the change of her name from Mary Ellen Mott to that of Mary Ellen Moss'. It is further recited that the minor petitioner's mother and William Mott have by separate instruments given their consent to such adoption and change of name; that adult petitioner is well able properly to raise and care for
minor petitioner; that adult petitioner contemplates making a home for minor petitioner, with his niece, in Alabama, at a place a short distance from his business interests in Moss Point; that it is the desire of adult petitioner to confer upon minor petitioner all rights of inheritance, etc., as if she were his own child.
This petition was sworn to by J. L. Moss June 3, 1943.
Accompanying the petition is an instrument entitled 'Consent of Mother to the Adoption', dated March 9, 1943, and signed by Mrs. Lovine Alice Mott; and, also, an instrument styled 'Consent of William Mott to the Adoption,' dated March 15, 1943, and signed by him.
The decree of Chancery Court of Jackson County, Mississippi, is as follows:
'This cause coming on for hearing on Petition of Mary Ellen Mott, a minor who will be three years of age on July 10, 1943, by her next friend, and of J. L. Moss, an adult resident citizen of Jackson County, Mississippi; praying for the adoption by J. L. Moss of the minor Petitioner, and that the minor Petitioner's name be changed from Mary Ellen Mott to that of Mary Ellen Moss; to which Petition there was exhibited separate instruments, executed under oath by Mrs. Lovine Alice Mott, mother of said minor, and by William Mott, father of said minor, by which each of the said parents gave their consent to the adoption of said minor, stated that they had no objection thereto, and gave their consent to the change of said minor's name; and the Court having considered the Petition and Exhibits, and having heard and considered the testimony offered, is of the opinion that the prayer of the Petition ought to be granted; it appearing to the Court that the parties are members of the white or Caucasian race, and that the minor Petitioner was born on July 10, 1940, and was given into the care and custody of the adult Petitioner, J. L. Moss, when she was between five and six months of age, and has been cared for continuously since by the said J. L. Moss; and it further appearing that William Mott and Lovine Alice Mott were divorced in September, 1942, and that the infant minor was given by them to the adult Petitioner when she was six months of age and that both parties have executed under their respective oaths separate instruments giving their consent to the adoption and to the changing of the minor's name; and it further appearing that the adult Petitioner is well able to care for said minor, loves her as he would his own child, and desires to confer upon the minor all rights and privileges, including those of inheritance from him; and that it would be to the best interest of the minor were the adoption permitted and the minor's name changed.
'It is therefore ordered, adjudged, and decreed, that the adoption of the minor, Mary Ellen Mott, by J. L. Moss be, and the same is hereby granted, authorized and decreed.
'It is further ordered, adjudged, and decreed, that the minor's name be, and it is hereby changed from Mary Ellen Mott to Mary Ellen Moss.
'It is further ordered, adjudged, and decreed, that the minor enjoy all the rights and privileges from said adoption that the natural child of the said J. L. Moss would enjoy and that there be, and is also conferred upon her the right of inheritance from the said J. L. Moss to the same effect as though the minor were his own child.
'Ordered, adjudged, and decreed this the 15 day of June, A. D. 1943.
This is a proceeding to determine the right to the custody of a little girl named Mary Ellen Mott, three years of age, as between Lovine Alice Ingram, formerly Lovine Alice Mott, the mother of the child, and J. L. Moss, the stepfather of the mother. The equity court granted the custody of the child to the mother. This appeal is from that decree.
On June 5, 1942, the Circuit Court of Mobile County, in Equity, rendered a decree granting Lovine Alice Mott a divorce from the bonds of matrimony from William Ira Mott. In that decree the custody of Mary Ellen Mott, the aforesaid minor, was awarded to her mother, Lovine Alice Mott. In the decree the court expressly retained jurisdiction to make such further orders as to the custody of the child, as the court might deem proper.
On October 6, 1943, Lovine Alice Ingram filed a petition in said court at Mobile alleging in substance that J. L. Moss, before she was divorced, had custody of the child and had the custody at the time of filing the petition and was refusing to give the child to petitioner and threatening that if petitioner sought custody of the child, he would do bodily harm to the child. The petition further alleges in substance that petitioner signed some papers at Pascagoula, Mississippi, pertaining to the child, which she signed under compulsion, J. L. Moss threatening to kill petitioner and her mother if she did not sign the papers; that since that time petitioner has married George Gaston Ingram, lives with him in Mobile County, Alabama, and that he is earning a good salary and is able and willing to furnish petitioner and the child a decent home in moral surroundings. The petition prays for a temporary order for the child, pending hearing and final decree.
On the basis of the foregoing petition and the evidence offered in support thereof, the court issued an order directing the Sheriff to take possession of the child, alleged to be in the possession of J. L. Moss at Citronelle, Alabama, and place it in the custody of petitioner, its mother. The court further set the case down for hearing, ordered notice thereof to be given to J. L. Moss, and directed him to show cause why he should not be required to deliver permanent custody of the child to its mother, as previously decreed by the court in its decree of June 5, 1942.
J. L. Moss thereupon filed an answer to the foregoing petition alleging in substance that he loved the child, and treated her with the same love and affection as though she were his own child. In the answer he states that he is a fit and proper person to have her custody. He also denies that he has threatened the life of the minor or threatened to do her bodily harm. He alleges that by reason of a decree of adoption of the child entered by the Chancery Court of Jackson County, Mississippi, the matter is res adjudicata and the Circuit Court of Mobile County without jurisdiction. Copies of the decree of the Mississippi court and the proceedings on which it is based are attached to the answer. The decree of the Mississippi court and the salient features of the proceedings on which it is based will be set out in the report of the case.
The fitness of Lovine Alice Ingram to have the custody of her child is sharply disputed. Likewise the fitness of J. L. Moss to have the custody of the child is seriously questioned. A great deal of evidence on these issues was introduced by both sides. No good purpose will be served by setting it out in detail....
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