Poole v. Poole
| Decision Date | 19 January 1970 |
| Citation | 210 Va. 442,171 S.E.2d 685 |
| Parties | Barbara T. POOLE v. Robert E. POOLE, III. |
| Court | Virginia Supreme Court |
A. Lee McGratty, Waynesboro (Tiffany & Poland, Waynesboro, on brief), for appellant.
J. T. Camblos, Charlottesville (Belt, Camblos & Pickford, Charlottesville, on brief), for appellee.
Before SNEAD, C.J., and I'ANSON, CARRICO, GORDON, HARRISON, COCHRAN, and HARMAN, JJ.
I'ANSON, Justice.
Plaintiff, Robert E. Poole, III, filed a petition in the Corporation Court of the City of Charlottesville against the defendant, Barbara T. Poole, asking that custody of the infant daughter of the parties be taken from the defendant and awarded to him, and that the defendant be enjoined from removing the child beyond the jurisdiction of the court pending a hearing on the petition. Plaintiff alleged that the defendant had neglected the child and that she was morally unfit to have her custody.
The petition also alleged that the parties were married in Gonzales, Texas, on August 10, 1963; that there was one child of this marriage, Lisa Michelle Poole, born on May 14, 1964; and that on January 25, 1965, by a decree entered by the District Court of Gonzales County, Texas, the defendant was granted a divorce from the plaintiff and she was awarded the custody of their infant child.
After the parties separated the plaintiff moved to Virginia and resided with his parents in Albemarle County. During the month of July, 1966, the mother and the child came to Charlottesville to live. With the consent of the mother, the child spent considerable time with the father, and at the time the petition was filed the father had the actual physical custody of the child.
The day after the defendant was served with notice of the petition and the injunction decree prohibiting her from removing the child beyond the court's jurisdiction she appeared, by counsel and in person, in the court below. Upon defendant's motion to give full faith and credit to the Texas decree, she was awarded temporary custody of the child pending a hearing on the merits.
Almost immediately thereafter the defendant left Virginia, taking the child with her, and she has not returned.
On the day the case was set for a hearing on its merits, counsel filed a plea to dismiss plaintiff's petition on the ground that the Junvenile and Domestic Relations Court of Charlottesville had exclusive original jurisdiction of the question before the court. The trial court overruled the motion and after hearing evidence entered a decree awarding the custody of the infant child to the plaintiff.
The sole question for our determination is whether the corporation court had jurisdiction to award custody of the infant child to the plaintiff. The answer is found in Code §§ 16.1--158(1)(e) and (j), and 16.1--161. 1
The pertinent parts of § 16.1--158, Code of 1950, as amended, 1960 Repl.Vol., provide as follows:
'* * * Except as hereinafter provided, each juvenile and domestic relations court shall have, within the limits of the territory for which it is created, exclusive original jurisdiction * * * over all cases, matters and proceedings involving:
(1) The custody, support, control or disposition of a child:
(e) whose custody or support is a subject of controversy, provided, however, that in such cases jurisdiction shall be concurrent with and not exclusive of courts having equity jurisdiction, as provided in § 16.1--161 hereof;
(j) whose condition or situation is alleged to be such that his welfare demands adjudication as to his disposition, control and custody, provided that jurisdiction in such cases shall be concurrent with and not exclusive of that of courts having equity jurisdiction, as provided in § 16.1--161 hereof.'
The pertinent part of § 16.1--161, Code of 1950, 1960 Repl.Vol., reads as follows:
'Nothing contained in this law shall deprive any other court of the concurrent jurisdiction to determine the custody of children upon a writ of habeas corpus under the law, or to determine the custody or guardianship of children when such custody or guardianship is incidental to the determination of causes pending in such courts, provided that when a court of record shall have taken jurisdiction thereof the juvenile and domestic relations court shall be divested of such jurisdiction. * * *'
It is evident that the purpose of Code § 16.1--158 was to vest in juvenile and domestic relations courts the widest possible authority and power to deal with matters touching the care and custody of infants. Lowe v. Grasty, 203 Va....
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...where jurisdiction is granted to the circuit courts, the jurisdiction of the J & DR court is not exclusive. See Poole v. Poole, 210 Va. 442, 444, 171 S.E.2d 685, 686-87 (1970). Jurisdiction that does not exist, a fortiori, cannot be concurrent with another court's In Virginia, the jurisdict......
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...support and visitation, unless such matters were incidental to a cause properly within the court's jurisdiction. Poole v. Poole, 210 Va. 442, 171 S.E.2d 685 (1970). Here, however, the mother filed a petition in the Circuit Court of Franklin County which prayed for an award of spousal suppor......