State v. Black

• Decision Date: 16 May 1940
• Docket Number: 6 Div. 645.
• Citation: 196 So. 713,239 Ala. 644
• Parties: STATE ET AL. v. BLACK.
• Court: Alabama Supreme Court

196 So. 713

239 Ala. 644

STATE ET AL. v. BLACK.

6 Div. 645.

Supreme Court of Alabama

May 16, 1940

Rehearing Denied June 6, 1940.

Appeal from Circuit Court, Jefferson County; Robt. J. Wheeler Judge.

Proceeding by Ormond O. Black against Mary Collett Black for the custody of Paula Black, a female child under the age of 18 years wherein the State of Alabama became a party by intervention. From a decree in favor of Mary Collett Black, the State of Alabama and Ormond O. Black appeal.

Affirmed.

Thos S. Lawson, Atty. Gen., Geo. Lewis Bailes, Circuit Sol., Ernest L. Hargrave, Sol. of Juvenile and Domestic Relations Court, Boutwell & Pointer, and Pritchett & Giles, all of Birmingham, for appellants.

Murphy, Hanna & Woodall, of Birmingham, for appellee.

THOMAS Justice.

The appeal presents the status quo of a little girl of tender years, the subject of litigation conducted by her parents.

It is well understood by the decisions of this court that such judgment should be rendered as is for the best interest of the child without undue regard to technical pleading.

The respondent mother attempts to defeat the proceeding in the Alabama court by setting up a judgment of a foreign state rendered and interim after the child had been taken to another jurisdiction by the consent of the parents, and then to another jurisdiction without the consent of the respective parents.

After much pleading, discussion of respective counsel, hearing of the evidence under the original petition and answer, and special plea as amended by Mary Collett Black (mother of the child) by way of her special appearance in the Alabama Court, a decision was rendered.

The holding was that the State of Alabama was not entitled to the relief as prayed in the amended petition, that such petition should be dismissed and that the said infant, Paula Black, should be discharged and also that the petitioner or respondent, Mary Collett Black, was entitled to the relief as prayed for in her said petition, or answer, or special plea as so amended, by way of her special appearance, filed in this cause as an independent defense to the original petition as amended and filed in the cause by the State of Alabama at the instance of Ormond O. Black, father of the child.

The State of Alabama became a party by intervention of its due officials and brief has been filed here by the Attorney General, since the question presented by the special appearance of the mother was that of comity or superior jurisdiction as between the State of New York and the State of Alabama.

The Domestic Relations Court created by Act No. 478, approved September 13, 1935, Acts 1935, pp. 1012-1030, has the jurisdiction and powers of a court of equity, except as limited by said act, in respect to "The disposition, custody, control or protection of delinquent, dependent, or neglected children," resident within its territorial jurisdiction. The child in the case at bar, as appears from the undisputed evidence, was not actually residing in Jefferson County, Alabama, when the proceeding was instituted in the local court, but had acquired a residence, with appellant's consent, in another jurisdiction, where it was being supported and cared for by the mother, and appellant wrongfully removed it therefrom for the purpose of giving the court of domestic relations of Jefferson County jurisdiction. He did not come with clean hands, and if the true state of the case had been made known to the local court, it would no doubt have declined jurisdiction, and the circuit court on appeal, when the case was triable de novo, had the right to decline jurisdiction to determine the child's custody, and leave that to the jurisdiction of the courts of the child's adopted residence.

The provisions of the law in the State of New York have been presented and it may be said that under Section 70, Art. 5 (Consol.Laws, Chapter 14), of the Domestic Relations Law of New York, in habeas corpus proceedings instituted by one parent against the other of an infant child detained for the State Supreme Court to determine its legal custody, "no prima facie right to the custody of the child [is] in either parent, but the court determines solely what is for the best interest of the child, and what will best promote its welfare and happiness, and makes award accordingly." The court so acts within its constitutional and statutory equity jurisdiction to regulate the custody of the infants found residing within the limits of that sovereign state for the protection due by it to the incompetent and helpless child, though its domicile be elsewhere. Sec. 1, Art. VI, N.Y. State Constitution, and said statute; McKinney's Consolidated Laws of N. Y., Chapter 14, Art. 5, § 70; Finlay v. Finlay, N.Y. Court of Appeals, July 15, 1925, opinion by Judge Cardozo, 240 N.Y. 429, 148 N.E. 624, 40 A.L.R. 937; Finlay v. Finlay, 212 A.D. 786, 208 N.Y.S. 585; Harrison & Saunders v. Harrison, 20 Ala. 629, 56 Am.Dec. 227.

Full faith and credit under Section 1 of Article 4 of the Constitution of the United States must be given the acts and judicial proceedings of a sister state, which has rightfully assumed jurisdiction to protect a child as an infant within the jurisdiction of that state and court and which child thereby became a ward of that court. The courts of Alabama, when that child is wrongfully brought into their jurisdiction, recognizing the sovereign authority of a sister state in respect thereto, as a matter of comity, will refuse to deal with the question relating to the future welfare of the child as same may be controlled by alleged changed conditions of the rival contestant as to the child's custody; but will honor, respect and enforce the asserted rights of the mother of such child, armed with a duly authenticated decree of that court of a sister state with jurisdiction of the parent of the child in awarding the child to her as the agent and trustee of the court and the sovereign state of New York, entitling her to the custody of the child for the purpose of returning her to that jurisdiction for that court's further dealings, if any there should be, with respect to the proper consideration of the child's welfare. Burns v. Shapley, 16 Ala.App. 297, 77 So. 447; Kugle v. Harpe, 234 Ala. 494, 176 So. 617; Jos. Joseph & Bros. Co. v. Hoffman & McNeill, 173 Ala. 568, 56 So. 216, 38 L.R.A.,N.S., 924, Ann.Cas.1914A, 718; Parker v. McLain, Executrix, etc., 237 U.S. 469, 35 S.Ct. 632, 59 L.Ed. 1051, 28 U.S.C.A. § 344, Judicial Code, § 237.

We prefer to advert to the decision by Mr. Chief Justice Cooley in the case of Maclean v. Speed, 52 Mich. 257, 258, 18 N.W. 396, 397, involving the issuance of a writ of prohibition, when he said: "It is a familiar principle that when a court of competent jurisdiction has become possessed of a case its authority continues, subject only to the appellate authority, until the matter is finally and completely disposed of, and no court of co-ordinate authority, is at liberty to interfere with its action. The principle is essential to the proper and orderly administration of the laws; and, while its observation might be required on the grounds of judicial comity and courtesy, it does not rest upon such consideration exclusively, but is enforced to prevent unseemly, expensive, and dangerous conflicts of jurisdiction and of process. If interference may come from one side, it may from the other also, and what is begun may be reciprocated indefinitely. The country has witnessed some such conflicts in which federal and state courts of coordinate powers have unguardedly or unadvisedly undertaken to hamper or restrain each other's actions, and the mischief of which such cases are suggestive are quite as likely to arise when courts existing as part of the same system intrude with their process upon each other's authority. The writs prayed for should issue."

The above authority was adopted by the Supreme Court of Alabama in Ex parte Burch, 236 Ala. 662, 184 So. 694, 697. Mr Justice Knight writing for the court said: "And this court in the case of Gay, Hardie & Co. v. Brierfield Coal & Iron Co., 94 Ala. 303, 11 So. 353, 16 L.R.A. 564, 33 Am.St.Rep. 122, in an opinion by Coleman, J., said (page 359): 'All the authorities recognize the importance of carefully preserving the boundary line between courts of concurrent jurisdiction, in order to prevent conflicts, and to preserve in harmony their relations to each other. * * * To prevent abuse of the principle, and the successful perpetration of injustice or fraud, through forms of law, courts accord to suitors and litigants all necessary latitude, and they are not restricted to any one forum for the adjudication of any question or right, provided only that such adjudications are not upon questions pending in another concurrent court which had prior jurisdiction, and provided that its writs or process shall not hinder the performance of any lawful mandate of such concurrent court, or interfere with the possession of any subject-matter then in...