Sovereign v. Sovereign

• Decision Date: 13 October 1958
• Docket Number: No. 77,77
• Citation: 354 Mich. 65,92 N.W.2d 585
• Parties: Will F. SOVEREIGN, Petitioner-Appellant, v. Mary K. SOVEREIGN, Defendant-Appellee.
• Court: Michigan Supreme Court

Page 585

92 N.W.2d 585

354 Mich. 65

Will F. SOVEREIGN, Petitioner-Appellant, v. Mary K. SOVEREIGN, Defendant-Appellee.

No. 77.

Supreme Court of Michigan.

Oct. 13, 1958.

Poppen, Street & Sorensen, Muskegon, for petitioner and appellant.

Irving M. Hart, Saginaw, for defendant.

Jason L. Honigman, Detroit, amicus curiae.

Before the Entire Bench.

EDWARDS, Justice.

The appeal presented to us is a contest as to child custody between two bitterly estranged parents. A final decision in a preceding divorce case denied divorce to each (Sovereign v. Sovereign, 347 Mich. 205, 79 N.W.2d 460).

The circuit judge felt that he had neither statutory nor inherent authority to hear the dispute, and dismissed the petition.

Mr. Justice SMITH would reverse on the ground that the circuit court is heir to the powers formerly assumed and exercised by the court of chancery in relation to children's cases.

We find no specific statutory provisions which deal with this particular custody problem. For that matter, there appears to be little case law on the subject except the dictum in In re Knott, 162 Mich. 10, 126 N.W. 1040, which supports Mr. Justice SMITH'S result. Thus, as to this immediate problem which would otherwise fall into a jurisdictional no man's land, we feel the general and historic chancery power of the circuit court is applicable.

We do not, however, agree that the circuit courts of Michigan sitting in chancery retain for all purposes the broad jurisdiction over children formerly exercised by the chancery courts.

Article 7, § 10, of the Constitution (1908), does give circuit courts 'original jurisdiction in all matters civil and criminal not excepted in this constitution and not prohibited by law.'

See, also, C.L.1948, § 606.4 (Stat.Ann.1957 Cum.Supp. § 27.545); C.L.1948, § 722.541 (Stat.Ann.1957 Rev. § 25.311).

But since the turn of the century, Michigan has been one of the leading States in the development of a court with specialized powers and functions in relation to dependent, neglected and delinquent children. ¹ Jurisdiction as to this category of cases was placed by the Constitution of 1908 in the probate courts:

'They shall also have original jurisdiction in all cases of juvenile delinquents and dependents.' Article 7, § 13. (Emphasis supplied.)

(See, also, Hunt v. Wayne Circuit Judges, 142 Mich. 93, 105 N.W. 531, 3 L.R.A.N.S., 564; Robison v. Wayne Circuit L.R.A.,N.S., 564; Robison v. Wayne Circuit handed down prior to the constitutional amendment just quoted; and In re Mould, 162 Mich. 1, 126 N.W. 1049, and Attorney General ex rel. Dingeman v. Lacy, 180 Mich. 329, 146 N.W. 871, decided subsequent thereto.)

Further, as authorized by the Constitution, detailed legislation spelling out the jurisdiction and the powers of disposition of the probate court, juvenile division, in relation to children has been adopted. C.L.S.1956, §§ 712A.2, 712A.18 (Stat.Ann.1957 Cum.Supp. §§ 27.3178 [598.2], 27.3178 [598.18]).

Further, by specific statutory enactment, the circuit courts are granted appellate powers over the decisions of the probate court, juvenile division. C.L.1948, § 712A.22 (Stat.Ann.1957 Cum.Supp. § 27.3178 [598.22]).

These constitutional and statutory provisions appear to follow a popular and legislative design in the creation of a division of the probate court with special jurisdiction, special powers of disposition, and specialized staffing as to children's problems in dependency and delinquency cases.

We feel the revival of the use by the circuit court in chancery of broad powers in children's cases concurrent with the constitutional and statutory powers of the probate court, juvenile division, would be catastrophic for the children for whom this State has plainly intended to create these specialized services. The confusion and delay attendant upon the exercise of original jurisdiction by both circuit and probate courts in dependency and delinquency cases would confound court administration and undoubtedly result in lengthened and more damaging detention of children pending disposition.

Fortunately, the constitutional and statutory provisions which we have cited, by creating specific exceptions to the general jurisdiction of the circuit courts, prohibit any such undesirable result.

Further, where by statute a full and adequate legal remedy has been provided, it is generally held that equity will not entertain jurisdiction. Campau v. Godfrey, 18 Mich. 27, 100 Am.Dec. 133; Marshall v. Ullmann, 335 Mich. 66, 55 N.W.2d 731; Weinhardt v. Addison Community Schools, 347 Mich. 683, 81 N.W.2d 240; 19 Am.Jur., Equity, §§ 100, 101.

In the particular fact situation presented by the instant petition, however, we have a different problem. Here, we have no allegations or showing of dependency or delinquency. The custody controversy is between two persons who are the natural and legal parents of the child. With prior dismissal of the divorce suits, there is no specific statutory remedy available in any court--indeed, there is no provision for adjudication of this parental dispute over child custody at all--absent general chancery jurisdiction. Hence we concur with Mr. Justice SMITH in reversal for hearing by the chancellor.

DETHMERS, C. J., and CARR and KELLY, JJ., concurred with EDWARDS, J.

SMITH, Justice.

The case before us squarely presents this issue: Does a court of chancery have jurisdiction over the allegedly abused or neglected children of a marriage if the bill filed is addressed solely to their welfare and contains no prayer for annulment or divorce? To put it in other terms, is chancery jurisdiction as to custody of such children only subordinate and ancillary to some other well-recognized subject of equity jurisdiction? Or, in the alternative, is the custody of such children, in and of itself, a proper sphere of equitable jurisdiction? We can conceive of few topics of equal importance to our people as the divorce rate soars and as the children of the marriage are cast without. ¹ A few such tragedies are too many. When tens of thousands are affected it becomes a national reproach. We approach the issue tendered with humility, consoled only by the thought that in our scheme of things such decisions must of necessity be made by those on the woolsack, however imperfect their attainments.

The action before us, in chancery, comes to us from the county of Bay, the residence of petitioner Will F. Sovereign. The petition prayed annulment of his marriage to Mary K. Sovereign, determination of property rights, award of custody of their son, Will F. Sovereign, Jr., (born January 1, 1948, now with the defendant-mother) and injunctive relief. These prayers were coupled with the traditional invocation of the chancellor's powers, 'such other and further relief as shall appear agreeable to equity and good conscience.' Process was served personally upon the defendant in the city of Saginaw by deputy sheriff Howard Maturen. No question is raised as to the validity of the service. Defendant thereafter entered 'a special appearance * * * for the sole purpose of making motion to dismiss the petitioner's petition to annul marriage, award custody, and determine property rights, for the following reasons:

'(1) The subject matter of said suit is barred by a prior decree.

'(2) The petition does not state a cause of action.

'(3) The court does not have jurisdiction.

'(4) The petitioner does not come into court with clean hands.

'This motion is based upon the files and records of this cause and the files and records of the case of Mary K. Sovereign v. Will F. Sovereign, in the circuit court for the county of Saginaw, in chancery, Case No. 29905, and the opinion of the Supreme Court of the State of Michigan reported in 347 Mich. 205 , and upon the affidavit of Mary K. Sovereign, hereto annexed.'

These parties have been before our Court upon a prior occasion. In the case of Sovereign v. Sovereign, 347 Mich. 205, 79 N.W.2d 460, 462; we reversed the decree of divorce (and order amending the same) entered below and held that 'Decree may enter here dismissing' the bill, brought by the wife, and the cross-bill. In the case at bar, in the hearing upon the motion above described, defendant argued that (in view of the former divorce action) the doctrine of res judicata barred the action before the Court. Petitioner, however, conceding that 'the main purpose of this petition is to determine custody,' stated that in view of defendant's opposition he would 'amend and withdraw the annulment and property settlement angle and leave it solely as a petition to determine custody.'

Before proceeding to our consideration of the arguments made in support of the parties' respective positions, we will note that we find no need to rule upon a point raised by amici curiae that jurisdiction over the child may have remained in the chancellor who heard the former divorce action despite our dismissal of the bill and cross-bill. The parties have not urged this position and we find nothing in the pleadings, orders, or decree suggesting such attempted retention of jurisdiction. The matter of continuing jurisdiction under these circumstances is cloudy and confused and much may depend upon the essence of the relief asked by the parties, that is, whether in the particular case custody is merely incidental to divorce, or divorce incidental to custody. See Urbach v. Urbach, 52 Wyo. 207, 73 P.2d 953, 113 A.L.R. 889. The cases pro and con will be found in an annotation to the Urbach case, in Volume 113 A.L.R. at page 901.

Petitioner's bill having relied in part upon C.L.1948, § 722.541 (Stat.Ann. § 25.311), ² defendant first urged that the petition 'does not state a cause of action nor does the court have jurisdiction' under such statute independent of a divorce or separate maintenance proceeding. Petitioner, while not conceding the inapplicability of the statute, argued in reply that even without statute, chancery had jurisdiction,...