Smith v. Watson

• Decision Date: 14 January 1983
• Docket Number: No. 53318,53318
• Citation: 425 So.2d 1030
• Parties: C.D. SMITH, Jr., v. Mary Louise WATSON, Betty Watson, Albert Watson and Lucinda Hughes.
• Court: Mississippi Supreme Court

Page 1030

425 So.2d 1030

C.D. SMITH, Jr., v. Mary Louise WATSON, Betty Watson, Albert Watson and Lucinda Hughes.

No. 53318.

Supreme Court of Mississippi.

Jan. 14, 1983.

Self & Jordan, Earl P. Jordan, Jr., Meridian, for appellant.

Cupit & Maxey, Glenda W. Tomlinson, Jackson, for appellees.

Before the Court EN BANC.

WALKER, Presiding Justice, for the Court:

C.D. Smith, Jr. filed a petition for writ of habeas corpus in the County Court of Warren County. His petition was filed in order to enforce a child custody decree granted by the Chancery Court of the First Judicial District of Hinds County. On appeal, Smith's sole assignment of error concerns the county court's failure to give full faith and credit to the chancery decree.

I.

The unusual factual situation in this case requires a recital of facts involving two lawsuits. Smith is the natural father of Cynthia Dyann Smith, who was born out of wedlock on December 5, 1970. The natural mother, Mary Louise Watson, is a resident of California and has seldom lived with her child. These natural parents have never been married, nor has Smith ever adopted the child as his own. With little exception, Cynthia Dyann has lived with maternal relatives throughout the ten years of her life prior to the lower court hearing: first being with her maternal grandparents until she was seven and then with her aunt, grandfather and mother alternately until 1980.

Following the birth of the child in question, the child's father, C.D. Smith, Jr., attended school at Mississippi State University and thereafter earned a comfortable salary from his employment. At the present time, he earns approximately $24,000 annually. Nonetheless, Smith contributed to the child's support solely in the form of clothing and gifts. These contributions did not begin until 1978, when he began visiting the child on infrequent occasions. Moreover, he has never paid any medical expenses or other ordinary expenses for the child.

Following the death of her grandmother in 1977, Cynthia Dyann went to live with Betty Watson, her aunt, in Hinds County, Mississippi, where she was living on February 1, 1980 when Smith filed his original bill of complaint for custody in the Hinds County Chancery Court pursuant to Mississippi Code Annotated section 93-11-65 (1972) ¹. Venue for the filing of this custody suit was based on the fact that both the child and her custodian, Betty Watson, lived in Hinds County, Mississippi, but they were not named defendants in the custody action. The only defendant named was the mother, Mary Louise Watson, a non-resident of the state of Mississippi. Service of Process was mailed to Watson in California, but the mail was returned "Refused", and no answer was filed in the lawsuit. On July 22, 1980, the Chancery Court of the First Judicial District of Hinds County entered a decree awarding the custody of Cynthia Dyann to C.D. Smith, Jr. However, prior to the entry of this decree, Cynthia left Hinds County and traveled to California to live with her mother. The child was returned to Warren County, Mississippi in the latter part of 1980 for a Christmas visit with her grandfather, Albert Watson. When this fact became known to Smith, he filed, inter alia, a petition for a writ of habeas corpus in the County Court of Warren County, seeking aid in obtaining custody of the child under the Hinds County decree and naming as defendants: Mary Louise Watson, mother of the child; Betty Watson, aunt of the child; Albert Watson, grandfather of the child; and Lucinda Hughes, great aunt of the child. In response, the defendants filed an answer and cross-petition which admitted the rendering of the Hinds County 1980 decree but denied that it legally vested custody of the minor child in C.D. Smith, Jr. Their cross-petition further alleged that there had been a material change in circumstances since the rendition of the 1980 decree from Hinds County. In conclusion, the defendants also sought a decree of custody in the mother, or in the alternative, in one of the other relatives made defendant in the action.

At the conclusion of the hearing on the habeas corpus petition and the cross-petition for custody, the county court entered an order finding that the Chancery Court of Hinds County was without jurisdiction when it entered its decree of July 22, 1980, in Cause No. 112,535. The court further gave custody of the minor child to Albert Watson, her grandfather, until further orders of the court with visitation rights being granted to the father and to the paternal grandparents.

II.

The appellant contends that the county court erred in disregarding the prior chancery court decree, and in conducting a full hearing to determine who should have custody. Generally, when prior proceedings conducted by another court determined the custody of an infant, the prior judgment must be regarded as final, and it is not subject to attack by subsequent habeas corpus proceedings. Neal v. Neal, 238 Miss. 572, 119 So.2d 273 (1960); Hinman v. Craft, 204 Miss. 568, 37 So.2d 770 (1948); 39 C.J.S. Habeas Corpus Sec. 129 (1976). However, the habeas corpus court can disregard the prior decree where circumstances and conditions arising since the decree show that the party awarded custody is unfit to exercise or has abandoned custody of the child. Mixon v. Bullard, 217 So.2d 28 (Miss.1968); Bradley v. Graham, 250 Miss. 244, 164 So.2d 772 (1964); 39 Am.Jur.2d Habeas Corpus Sec. 92 (1968). Furthermore, the prior decree can be attacked for want of jurisdiction and thereby rendered void. Accord, Smith v. State, 155 So.2d 494 (Miss.1963); Wheeler v. Shoemake, 213 Miss. 374, 57 So.2d 267 (1952). If the prior court lacked jurisdiction a full hearing may be conducted, without regard to the prior decree, to determine child custody rights. Griffin v. Bell, 215 So.2d 573 (Miss.1968).

In the instant case, the county court judge concluded that the Hinds County Chancery Court had no subject matter jurisdiction over the matter under Mississippi Code Annotated section 93-11-65 (1972). His ruling was apparently based on an improper interpretation of our ruling in Harper v. Harper, 300 So.2d 132 (Miss.1974). In Harper, we concluded that section 93-11-65 provided a remedy to gain child support for a child born before marriage, if the father had subsequently acknowledged the child as his own after marriage to the mother. The Harper ruling did not exclude the availability of section 93-11-65 as a means for unmarried natural fathers to obtain custody of illegitimate children. Nor do we embrace such an exclusion now, and therefore, the chancery court properly held subject matter jurisdiction of Smith's suit for custody.

At the conclusion of the habeas corpus hearing, the county court judge granted custody of the child to its maternal grandfather, Albert Watson, without making any finding that both natural parents were unfit or had abandoned the child.

In resolving such custody matters the best interest and welfare of the child is the key. Lindauer v. Charleston, 58 So.2d 69 (Miss.1952); Haynie v. Hudgins, 122 Miss. 838, 85 So. 99 (1920); Glidewell v. Morris, 89 Miss. 82, 42 So. 537 (1906). But, all things being equal, all jurisdictions recognize that the mother of an illegitimate child, if the mother is a suitable person, has the primary right to the child's custody. H. Clark, Jr., Law of Domestic Relations 176 (1968); Annot., 98 A.L.R.2d 417, 420 (1972). After the mother, most jurisdictions recognize that the putative father of the child has a superior right against all others to the custody of the child. Annot., 45 A.L.R.3rd 216, 220 (1972). Mississippi follows this majority rule. Aycock v. Hampton, 84 Miss. 204, 36 So. 245 (1904); Hibbette v. Baines, 78 Miss. 695, 29 So. 80 (1900). Furthermore, upon acknowledging the child as his own, the father has an equal claim, with the mother, to the parental and custodial rights to the child. N. Hand, Jr., Mississippi Divorce, Alimony and Child Custody 271 (1981). If neither parent is fit or has abandoned the child, then the court is empowered to grant custody to some other suitable party.

We are of the opinion that the habeas corpus court reached the right result in part, ² but for the wrong reason.

In suits between the parents of children involving the children's custody, neither the children nor third persons are necessary parties. However, where the child or children are in the custody of a third person, such as a grandparent or an aunt, as we find in this case, any decree awarding custody to one natural parent or the other is not binding on the grandparent or aunt unless they were made parties to the original custody suit. 24 Am.Jur.2d Divorce and Separation Sec. 791 (1966); Favre v. Medders, 241 Miss. 75, 128 So.2d 877 (1961); Pace v. Barrett, 205 So.2d 647 (Miss.1968); Noble v. Noble, 302 Ky. 679, 195 S.W.2d 319 (1946); see also Henderson v. Kleinman, 231 Ind. 657, 109 N.E.2d 905 (1953). That is to say, the grandfather and aunt are not necessary parties to the extent that it would affect the validity of the decree as between the mother and father, but would not themselves be bound by the decree if they were not made parties. The aunt and grandparent would be proper parties if made defendants, although not necessary parties.

In the case sub judice, the aunt and grandfather were not made parties to the original Hinds County Chancery Court proceeding between the mother and father of the child, Cynthia Dyann. Therefore, the decree of custody as between the mother and father is not conclusive and binding on them. When presenting their evidence at the habeas corpus hearing, the grandfather and aunt were not limited to showing a change of circumstances that occurred after the entry of the Hinds County decree, but could present evidence with reference to the facts surrounding their right to custody from the time the child began living with the grandfather and grandmother as an infant.

As stated...