State ex rel. Cox v. Lohah, 42506

• Decision Date: 18 July 1967
• Docket Number: No. 42506,42506
• Citation: 434 P.2d 928
• Parties: STATE of Oklahoma ex rel. Sandra Kaye COX, Plaintiff, v. Charles H. LOHAH, Judge of the County Court of Osage County, Oklahoma, Defendant.
• Court: Oklahoma Supreme Court

Page 928

434 P.2d 928

1967 OK 165

STATE of Oklahoma ex rel. Sandra Kaye COX, Plaintiff, v. Charles H. LOHAH, Judge of the County Court of Osage County Oklahoma, Defendant.

No. 42506.

Supreme Court of Oklahoma.

July 18, 1967.

Rehearing Denied Oct. 3, 1967.

Syllabus by the Court

1. Prohibition is an appropriate remedy to prevent an intolerable conflict in the exercise of jurisdiction between courts of equal jurisdiction.

2. Under Title 12 O.S.1961, § 1277, the jurisdiction of the district court to determine the custody and welfare of children of parents in a divorce action attaches from time jurisdiction is first invoked and not from the time judgment is entered.

3. Where suit was first filed in the District Court of Osage County involving divorce and custody of minor children, and thereafter while said case was pending in the first court, a petition was filed in the County Court of Osage County to declare the children dependent and neglected children, and where full, complete and adequate relief may be obtained in the first court, and where an intolerable conflict of jurisdiction would arise if both courts were permitted to act, it is proper to prohibit the second court from exercising jurisdiction.

Original proceeding by Sandra Kaye Cox against Charles H. Lohah, Judge of the County Court of Osage County, Oklahoma, for a writ of prohibition. Writ granted.

Hamilton, Kane & Kane, Pawhuska, for plaintiff.

Kelly & Gambill, by Bruce W. Gambill, Pawhuska, for defendant.

DAVISON, Justice.

This matter is presented on an application to this court to assume original jurisdiction and petition for a writ of prohibition ordering the defendant to desist and refrain from further proceeding in his capacity as Judge of the County Court of Osage County, Oklahoma, in cause No. 1124 in that court. The plaintiff herein, for clarity, will at times be referred to as petitioner.

From the oral argument and briefs of counsel it appears that on April 6, 1967, Joseph Leonard Cox, Sr., as plaintiff, filed an action in the District Court of Osage County, Oklahoma, against Sandra Cox, petitioner herein, as defendant; that summons was duly served and on April 7, 1967, the defendant (petitioner herein) filed her answer and cross petition in said cause.

That the above case was duly docketed as cause No. D--13906; that the issues involved therein are the matter of divorce between the parties and the care, custody, welfare and education of the four minor children of the parties, the young child being 1 1/2 years old and the oldest child being 8 years of age; that this cause is still pending and the issues undisposed of.

That thereafter, to wit, on April 25, 1967, the paternal grandparents of the children involved herein filed an action in the County Court of Osage County, Oklahoma, alleging that the parents of the children involved herein were both unfit to act as parents of said children and praying that said children be adjudged neglected children and made wards of that court to be provided for as the law directs.

That on May 4, 1967, petitioner filed motion to dismiss in cause No. 1124 in the County Court on the grounds that cause No. D--13906 was first filed and pending in the District Court and that that court had exclusive jurisdiction and authority to determine the matter of custody, support and welfare of the minor children. This motion to dismiss was denied by the County Judge (defendant herein) on the theory that the County Court, sitting as a Juvenile Court, had jurisdiction to determine the matters presented regardless of the first filed and pending suit in the District Court. The defendant then ordered that cause No. 1124 be set for trial on May 31, 1967, which order gave cause for filing of the present application for the writ of prohibition in this court.

We find that this cause involves a conflict of jurisdiction between the two courts involved herein, and, that this court should assume original jurisdiction for a determination of the matter.

The question here to be determined is where suit was first filed in the District Court of Osage County involving divorce and custody of minor children, and thereafter while said case was pending in the first court, a petition was filed in the County Court of Osage County to declare the children dependent and neglected children, and where full, complete and adequate relief may be obtained in the first court, and where an intolerable conflict of jurisdiction would arise if both courts were permitted to act, is it proper to prohibit the second court from exercising jurisdiction?

The statutory basis for the jurisdiction of the District Court is Title 12 O.S.1961, § 1277, and is as follows:

'A petition or a cross-petition for a divorce, legal separation, or annulment must state whether or not the parties have minor children of the marriage. If there are such children, the court shall make provision for guardianship, custody, support and education of the minor children, and may modify or change any order in this respect, whenever circumstances render such change proper either before or after final judgment in the action.'

The statutory basis for the jurisdiction of the County Court is Title 10 O.S.1961, §§ 101 and 102, and are as follows:

Section 101, reads:

'* * * the words 'dependent child' and 'neglected child' shall mean any male child under the age of sixteen years and any female child under the age of eighteen years who for any reason is destitute, homeless or abandoned; or dependent upon the public for support; or has not the proper parental care or guardianship; * * *'

Section 102, reads:

'The county courts of the several counties of this State shall have jurisdiction in all cases coming within the terms and provisions of this Article. In trials, under this Article, the child informed against, or any person interested in such child, shall have the right to demand a trial by jury, which shall be granted as in other cases unless waived, or the judge of his own motion may call a jury to try such case, provided the judge may, if he deems it necessary or expedient, proceed to the selection of such jury in the same manner provided for the selection of such jury in the same manner provided for the selection of jurors by justices of the peace.'

We have had several occasions to construe Title 12 O.S.1961, § 1277, and have consistently held that the jurisdiction of the district courts regarding the care and custody of minor children of divorced parents is continuing and the court wherein a divorce is granted can, on its own motion, or at the suggestion of any person interested, make such reasonable order as may be necessary upon either or both of the parties to provide for the guardianship, custody, support and education of the minor child or children and such orders may be modified from time to time. Sango v. Sango, 121 Okl. 283, 249 P. 925; Bynum v. Bynum, 184 Okl. 36, 84 P.2d 424; Bishop v. Bishop, Okl., 321 P.2d 416; Danielle v. Thomas, Okl., 355 P.2d 1000; Clampitt v. Johnson, Okl., 359 P.2d 588, 591.

In the present case the issues have not yet been tried in the district court and the divorce has not been granted. This fact is immaterial however because under the plain wording of the present statute, Title 12 O.S.1961, § 1277, supra, heretofore set forth, the jurisdiction of the court has been invoked for the purposes involved herein and that court obtained jurisdiction from the time of the filing of the petition.

In the district court case the court will have the opportunity to determine the question of custody and determine whether one or both parents are unfit persons as custodians of the children and whether the children are legally neglected. If the trial court finds that both parents are unfit or that the children are legally neglected that court has authority to appoint some one other than the parents over their custody. This can be done under the statute when considering the best interests of the minors. In this connection we find precedent for the court to award custody of the minors to some one other than the parents. In the case of Phillips v. Phillips, Okl., 267 P.2d 597, we said:

'Court did not abuse its discretion by placing child of divorced parents in custody of its maternal grandparents, but upon application for change of custody, court could then consider whether either of child's parents were fit custodians for the child.'

Also see Anderson v. Anderson, 191 Kan. 76, 379 P.2d 348, and the reasoning in the case of Ex parte Frear (Frear v. Kelso), 190 Okl. 16, 119 P.2d 854.

In support of his contention defendant cites the case of Ex parte Frear, supra. The facts in that case disclose that in a divorce proceeding the mother was given the custody of the minor child and thereafter died. After her death the maternal grandfather was appointed guardian of the person and estate of the minor child in a proceeding in the county wherein the father of the child was a party. The county court's order appointing the guardian was an appealable order and no appeal therefrom was taken and the order became final. The cited case involved an application for a writ of habeas corpus by the father in the district court on the theory that the district court had continuing jurisdiction over the minor. The district court held that under the facts in the case it had no authority to grant the writ. On appeal to this court the opinion stated, 'If the father had applied to the District Court before the County Court was asked to appoint a guardian, a different issue would be presented. However, he did not do so, but submitted himself to the County Court and did not appeal from its order.' We are of the opinion that the cited case is not helpful to defendant.

The case of Mahan v. Moore, 198 Okl. 67, 175 P.2d 345, cited by defendant involves an adoption case which originated in the county court. However the proceeding for adoption had been instituted after a divorce action...