Neal v. State ex rel. Neal, C-314

• Decision Date: 21 December 1961
• Docket Number: No. C-314,C-314
• Parties: Marvel R. NEAL, also known as Marvel N. Hoffman, Appellant, v. STATE of Florida ex rel. J. A. NEAL and Zenia Neal, his wife, Appellees.
• Court: Florida District Court of Appeals

Page 891

135 So.2d 891

Marvel R. NEAL, also known as Marvel N. Hoffman, Appellant, v. STATE of Florida ex rel. J. A. NEAL and Zenia Neal, his wife, Appellees.

No. C-314.

District Court of Appeal of Florida, First District.

Dec. 21, 1961.

Thomas J. Carroll, Jacksonville, for appellant.

P. Donald DeHoff, Jacksonville, for appellees.

WIGGINTON, Judge.

This appeal is from a final judgment entered in a habeas corpus proceeding instituted by appellee grandparents, by which custody of the minor child born of appellant mother was taken from her and awarded to the grandparents.

Appellant, who was respondent in the habeas corpus proceedings, is the natural mother of the child in question. She and the child's father were divorced by final decree entered in the Chancery Court of Mississippi on July 12, 1955. By such final decree the custody of the child was awarded to the mother. She subsequently consented for the child to visit his grandparents in Mississippi who thereafter refused to return the child to the mother when demanded. The mother thereupon instituted a habeas corpus proceeding in the State of Mississippi for the purpose of regaining possession of the child. Upon the first hearing in that cause a decree was entered finding in favor of the mother, and ordered that the person of the child be delivered to her. Upon the entry of this decree the mother and the child immediately departed from the State of Mississippi and ultimately established residence in Duval County, Florida. The habeas corpus decree originally entered in the Mississippi suit was appealed. to the Supreme Court of that state. The decree was reversed and the cause remanded for further proceedings. The mother had apparently severed connections with her local counsel and for this reason was not informed that the decree in her favor had been reversed and further proceedings were required. The case subsequently proceeded to final decree on the merits resulting in a decree in favor of the grandparents, and awarding to them custody of the child. Armed with this decree the grandparents proceeded to Duval County in this state where they instituted the habeas corpus proceedings now under consideration.

In response to the petition for writ of habeas corpus brought by the grandparents, the mother filed her answer alleging in substance the foregoing facts. By her answer she put in issue the validity of the final decree in habeas corpus entered by the trial court in Mississippi, and contended that she was entitled to retain custody of her child under the previously rendered final decree of divorce which had not been modified or set aside. Her attack upon the validity of the Mississippi habeas corpus decree is two-fold. She first alleges that it is void for the reason that the answer of the grandparents to her petition for habeas corpus contained no prayer for affirmative relief, and therefore the court was without jurisdiction to grant such relief by awarding custody of the child to the grandparents. She further alleges that the judgment is void for the reason that she had no notice of reversal of the original decree by the Supreme Court of Mississippi, was not personally notified of any subsequent proceeding and therefore did not appear nor offer further evidence in support of her petition or in opposition to the grandparents' claim of entitlement to custody of the child.

At final hearing the trial court of Duval County struck that paragraph of the mother's answer in which she alleges a lack of knowledge that the original habeas corpus decree in her favor rendered by the trial court of Mississippi had been reversed and remanded for further proceedings, and that she had no personal knowledge of the further proceedings had in that cause which resulted in the decree awarding custody of her child to the grandparents. Before proceeding with the taking of testimony the trial court ruled that evidence in the case would be limited to facts occurring since May 24, 1960, the date of the final decree rendered in the Mississippi habeas corpus proceedings, and that upon such evidence the court would base its decision on what would be for the best interest of the child. After the testimony was concluded the trial court announced that it considered itself bound by the final decree in habeas corpus rendered by the trial court of Mississippi after reversal of the cause by the Supreme Court. Having found that it was so bound, the court held that its consideration would be confined to the question of whether the proof showed a sufficient change in circumstances of the child or the parties as would justify the court in taking custody from the grandparents and awarding it to the mother. The court ultimately concluded that the evidence before it failed to show such a change in circumstances as would warrant changing the custody provisions of the Mississippi habeas corpus decree, and therefore granted the writ as prayed and awarded custody of the child to the grandparents.

From a review of the record it is clearly apparent that the trial court considered itself unequivocally bound by the final decree rendered by the trial court of Mississippi in the habeas corpus proceeding by which custody of the child was awarded to the petitioner grandparents. In so doing he placed upon the respondent mother the burden of proving such a change in circumstances of either the child or the parties as would justify taking custody of the child from the grandparents and awarding it to the mother. In this respect the trial court committed error.

It could have been only upon the erroneous theory that the Mississippi decree awarding custody of the child to the grandparents was entitled to recognition and enforcement under the full faith and credit clause of the United States Constitution that the trial court ruled it was bound thereby. In Vermeulen ¹ this court held that judgments and decrees affecting the custody of minors, not being final, occupy a different status from those affecting divorces and property rights, and may be modified as circumstances warrant without doing violence to the full faith and credit clause of the Constitution. In Rhoades ² it was recognized that orders, judgments or decrees affecting custody of minors are subject to modification at any time as the welfare of the child might require. We held that for this reason decrees affecting the custody of minors are not entitled to recognition under the full faith and credit clause of the United States Constitution. It was ultimately held that although such decrees were not entitled to enforcement under the full faith and credit clause, the trial courts of this state are authorized in their discretion to recognize such judgments or decrees under the rule of comity. Our decision in Rhoades was affirmed in all respects by the Supreme Court in its denial of certiorari. ³

The foregoing holdings by this court in both Vermeulen and Rhoades were in conformity with the prior decisions of the Florida Supreme Court on the same subject.

In State v. Rasco the Supreme Court considered a petition for writ of habeas corpus to secure the custody of a minor child. The petitioner father sought custody of his child whose custody had been awarded to the mother under a decree of the Circuit Court of Duval County. The father, a resident of New Jersey, questioned the jurisdiction of the Circuit Court in Florida to award custody of his child to the mother. The Supreme Court denied the petition. After citing numerous cases involving proceedings seeking custody of minors which were in support of its ruling, the Supreme Court said: 'These cases also establish the rule that the doctrine of comity plays no part in the adjudication of such cases. Neither are decrees in such cases protected by the full faith and credit provision of the Federal Constitution, U.S.C.A., art. 4, § 1. This on the theory that the welfare of the child is the question of primary consideration, and this can best be determined by the Court who has jurisdiction of it, and in whose jurisdiction it resides.' ⁴

And in Eddy v. Staufer the Supreme Court, speaking through Mr. Justice Hobson, said: 'Counsel for petitioner cite respectable authority to sustain their contention that full faith and credit should be accorded the decrees of sister States in cases involving the question of custody of minors, not necessarily as an incident to the so-called full faith and credit clause of the Federal Constitution but certainly upon the basis of comity. The decided authorities are in conflict on this question. Some of this Court's decisions appear, upon a cursory examination, to lack consistency but, upon detailed examination, do not appear to be subject to such criticism. However, there is approximate unanimity of opinion to the effect that the Courts of a State where a child may be residing, even temporarily, have jurisdiction to make such orders concerning the child's custody as his welfare may from time to time require. This is almost uniformly the rule if the court of original jurisdiction may modify its custody decree.' ⁵

In Little v. Franklin the Supreme Court, speaking through Mr. Justice Terrell, said: 'We are not unmindful of the rule that judgments and decrees of the Courts of sister States be given full faith and credit in the State of the forum, but this rule like others may have its exceptions. We hold that judgments and decrees affecting the custody of children, not being final, occupy a different status from those affecting divorces and property rights and may be modified as circumstances warrant without out doing violence to the full faith and credit requirement of the Federal Constitution. People of State of New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133; * * *.' ⁶

In Dahlke v. Dahlke the mother of minor children filed a petition in an adjudicated divorce proceeding seeking custody of her minor children which had been awarded by the court...