Smith v. York, 6 Div. 206

• Decision Date: 30 September 1965
• Docket Number: 6 Div. 206
• Citation: Smith v. York, 179 So.2d 87, 278 Ala. 508 (Ala. 1965)
• Parties: Betty York SMITH v. Theresa YORK.
• Court: Alabama Supreme Court

Page 87

179 So.2d 87

278 Ala. 508

Betty York SMITH v. Theresa YORK.

6 Div. 206.

Supreme Court of Alabama.

Sept. 30, 1965.

Wm. A. Stevenson, Birmingham, for appellant.

Geo. Eyraud, Birmingham, for appellee.

MERRILL, Justice.

This appeal is from a decree denying appellant's petition for habeas corpus and granting custody of a minor, Elizabeth Ann York To appellee, her paternal grandmother. A motion to set aside the decree was overruled.

Appellant is the mother of the minor. On September 9, 1964, she filed a petition for writ of habeas corpus stating that the custody of her fourteen year old minor daughter had been granted to her by virtue of a court decree but that her daughter was being unlawfully detained by the grandmother (appellee) and the grandmother had refused to deliver the child to appellant after demand.

The notice to appellee shows that the petition was returnable on September 18, and presumably, the matter was set down for hearing on October 19. The record is silent as to such an order but the decree of the court, dated October 20, 1964, states in pertinent part:

'This date came Mrs. Theresa York, Respondent in the above styled matter, Complainant having failed to appear after having filed a petition for a writ of habeas corpus, and the same coming on to be heard by this court, the court is of the opinion that the facts set forth in the petition of Habeas Corpus are untrue and that the said Betty York Smith, petitioner herein, is not entitled to the relief prayed for in said petition, it is

'ORDERED, ADJUDGED and DECREED by the court that the petition of habeas corpus is denied and that the said Mrs. Theresa York be and is hereby granted the legal custody, care and control of Elizabeth Ann York, a minor, and that the said Mrs. Theresa York, by whatever means available, be and is hereby authorized to secure the person of the said Elizabeth Ann York, a minor.'

Appellant filed a motion to set aside the decree stating that she had been awarded the custody of the child, who was mentally retarded; that the child had been placed in Partlow State School with the mother's approval; that the child was removed from the school by appellee, her grandmother, without the father's permission; that on the return date in the habeas corpus proceeding all the parties were before the court but the cause was continued to October 19, 1964; that after the continuance and before October 19, the child's father returned the child to Partlow School; that appellant then instructed her attorney to dismiss the petition for habeas corpus; that on the morning of October 19, her attorney called the court and asked that the case be dismissed and costs taxed against appellant; that her attorney also ascertained that no pleading had been filed by appellee or her attorney of record; that on October 21, appellant's attorney received a copy of the decree awarding custody to appellee; and that appellee had again removed the child from Partlow State School.

The motion was heard on November 30, 1964, and appellant filed in open court an affidavit signed by appellee's attorney which, in part, read as follows:

'My name is George Eyraud, Attorney. I was retained to represent Mrs. Theresa York on a Habeas Corpus Petition on October 19th, 1964. I appeared at the hearing and was informed that W. A. Stevenson, Attorney, had called and requested that said Petition be dismissed. Up to this date I had had no conversation or contact with W. A. Stevenson about the case. Without any testimony being taken, I was directed by the Honorable Judge George Lewis Bailes to draw a decree granting custody of the said minor, Elizabeth Ann York to the grandmother. At this point I again raised the question with Judge Bailes as to whether the hearing should be treated as a custody hearing and I was informed by Judge Bailes that it was. In accordance with Judge Bailes oral request I prepared a decree and presented it to him for his signature, which I understand was signed as modified by the Judge and forwarded to W. A. Stevenson, Attorney. My first contact with W. A. Stevenson, Atty was after he received the copy of the decree.'

The motion to set aside the decree was overruled.

Appellant urges that the court erred in failing to dismiss the cause. This assignment of error is without merit. Motions are not imperatively required to be in writing, although it is better practice to reduce them to writing; and oral motions may, in the court's discretion, be made in a cause in the presence of the court. W. L. Weller & Sons v. Rensford, 185 Ala. 333, 64 So. 366. But appellant cannot put the court in error by its refusal to grant a motion to dismiss a cause made over a telephone.

Appellant argues that the circuit court in equity had no jurisdiction to decide the custody of the minor in a habeas corpus proceeding. We cannot agree.

A court of equity which awarded custody of a child in divorce proceedings is exercising its inherent powers, and it is immaterial how the power of the court to modify that decree is invoked, whether by habeas corpus or otherwise, if the facts sufficiently appear...