Stevens v. Brown

• Decision Date: 07 October 1963
• Docket Number: No. 3290.,3290.
• Citation: 194 A.2d 126
• Parties: Betty Moxley STEVENS, Appellant, v. William H. BROWN, Appellee.
• Court: D.C. Court of Appeals

194 A.2d 126

Betty Moxley STEVENS, Appellant, v. William H. BROWN, Appellee.

No. 3290.

District of Columbia Court of Appeals.

Argued July 1, 1963.

Decided October 7, 1963.

D. Robert Cervera, Washington, D. C., with whom Davis & Cervera, Washington, D. C., were on the brief, for appellant.

Harvey B. Bolton, Jr., Washington, D. C., with whom William H. Clarke, Richard W. Galiher and William E. Stewart, Jr., Washington, D. C., were on the brief, for appellee.

Before HOOD, Chief Judge, and QUINN and MYERS, Associate Judges.

HOOD, Chief Judge.

This appeal is by a mother of an illegitimate child from an order awarding custody of the child to the father. An understanding of the question presented requires a summary of three legal proceedings.

The first proceeding was an action commenced in the District of Columbia by the father against the mother for custody of the child. After a hearing the trial court on March 14, 1960, found in effect that neither the father nor the mother was a fit custodian for the child and ordered that "permanent custody" of the child be awarded to Mrs. Winifred Farris, the child's maternal aunt. At the time of the hearing and order the parents were, and have continued to be, domiciled in the District of Columbia; but at the time of the hearing the child was staying at the home of Mrs. Farris, a domiciliary of Maryland. Mrs. Farris was not a party to the action, but apparently was before the court in some capacity when custody was awarded to her. No appeal was taken from the order.

The second proceeding was commenced by the father in Maryland in 1961 by a petition seeking custody of the child. Mrs. Farris was the only defendant to that action. The petition recited the order of the District of Columbia court awarding custody to Mrs. Farris, but alleged that Mrs. Farris was not providing a proper home for the child, that the father was able to provide a proper home and was a fit person to have custody. After a hearing the Maryland court, on December 15, 1961, ordered that custody be awarded to Mrs. Farris. The father took no appeal.

The third proceeding was brought by the father in May 1962 by a motion in the original District of Columbia proceeding. This motion, entitled "Motion to Change Custody," was served upon the mother and upon Mrs. Farris in Maryland, although the motion did not purport to make Mrs. Farris a party to the proceeding. Mrs. Farris, through counsel, moved to dismiss the motion to change custody on the ground that any relief the father might obtain would have to be in the Maryland court in the proceeding he had instituted there. The trial court denied the motion on the ground that Mrs. Farris was not a party to the proceeding and could become a party only by intervention. She did not seek to intervene and took no further part in the proceeding. The mother did not answer the motion and an attorney was appointed for her. At the hearing her counsel made it clear that she was not seeking custody of the child, but moved that the proceeding be dismissed for lack of jurisdiction. The trial court refused to dismiss, conducted a hearing, made findings of fact and conclusions of law, and ordered that custody be awarded to the father and that the "custodian, Winifred Farris, * * * is directed to turn over custody of the minor" to the father.

About three weeks after entry of the order the father moved to hold the mother in contempt for failure to produce the child and surrender custody to the father. The mother opposed the motion on the ground that the child was in Maryland in custody of Mrs. Farris under order of the Maryland court and that she, the mother, did not have custody and could not surrender custody. Thereafter the motion to hold the mother in contempt was withdrawn.

This appeal by the mother raises the single question of the jurisdiction of the District of Columbia court in the second proceeding before that court. Jurisdiction in custody cases is a somewhat confused subject,¹ but on the admitted facts here we see no occasion for confusion.

In the original or first proceeding in the District of Columbia the father and mother, the contesting parties, both domiciled in the District, were personally before the court. The child, although then temporarily residing in Maryland, was domiciled in the District, as an illegitimate child takes the domicile of its mother.² The court clearly had jurisdiction to award custody.³

In the Maryland proceeding the father, although domiciled in the District, personally appeared in Maryland and instituted the proceeding. The custodian, Mrs. Farris, domiciled in Maryland, was in court through personal service. The child was physically present in Maryland and was domiciled in Maryland as its domicile had changed from that of its mother to that of its legal custodian.⁴ It may be noted here that the mother was not a party to the Maryland proceeding. The contesting parties were the father and the custodian. We think there can be no doubt of the Maryland court's jurisdiction to make an award of custody.⁵

With this background we turn to the third proceeding, the second one in the District. In that proceeding the father and mother, both domiciled in the District, were parties and were the only parties. But neither of them had custody of the child. By previous order of the court custody had been given to Mrs. Farris, a resident of Maryland, and the effect of that order was to remove the child from the jurisdiction of the court and place its custody in the hands of one not personally within the jurisdiction of the court. Lacking jurisdiction of both the legal custodian and the child, the court had no jurisdiction to make an award of custody.⁶ This lack of jurisdiction is pointed up by the order itself which directed the custodian, who was not a party and who was not amenable to the court's process, to surrender custody of the child who was also beyond the jurisdictional limits of the court. Contrast that order, which the court could not enforce, with the order of the Maryland court of September 7, 1962, entered while the second District of Columbia proceeding was pending, ordering that the child not be removed from the jurisdiction of the Maryland court without its order.

The father's argument is that the District of Columbia court in the original proceeding had jurisdiction over the child and that the jurisdiction in custody cases is a continuing one. For this proposition he relies largely on Emrich v. McNeil, 75 U.S.App.D.C. 307, 126 F.2d 841, 146 A.L.R. 1146. The facts there were quite different from those here. There all parties were before the court in both the original and supplemental proceedings, and the court ruled that: "So long as they — and especially the child — remain subject to the jurisdiction of the District Court, public policy requires that it, * * * shall determine all questions of custody and maintenance." 75 U.S.App.D.C. 310, 126 F.2d 844. The court cited its earlier case of Rosenberger v. Rosenberger, 68 App.D.C. 220, 221, 222, 95 F.2d 349, 350, 351, wherein, after discussing the general rule of continuing jurisdiction, it was said:

"There is a well recognized exception to the general rule, however, in cases involving the custody of infants, namely, that where an infant is physically within the jurisdiction of a court of another state, that court will extend its arms to protect it from injury and contamination, even to the extent, if necessary, of taking it from the custody of guardian or parent."

We must hold that the continuing jurisdiction of the District of Columbia court ceased when by that court's order the child, the subject of the custody proceeding, was removed from the District and placed in the custody of a resident of Maryland. We may note that it is neither improper nor unusual for a court, when it finds such to be for the best interests of the child, to permit or order the removal of the child to another jurisdiction.⁷ There was no reason for the District of Columbia court to assume that the Maryland courts would not be equally vigilant in protecting the welfare of the child.⁸

The continuing jurisdiction over custody of the child is in the Maryland court. The father voluntarily went to Maryland and invoked the jurisdiction of the Maryland court. That court, with jurisdiction over the persons of the father, the custodian, and the child, conducted a hearing, denied custody to the father and awarded custody to the custodian then in custody of the child under the District of Columbia order. On a somewhat similar factual situation in Sadler v. Sadler, 234 N.C. 49, 65 S.E.2d 345, 346, it was said:

"Plaintiff is a nonresident of the State of Georgia. Even so, he invoked the jurisdiction of a court of that State. He sought relief in that forum. He was present and voluntarily submitted himself to the jurisdiction of that court with respect of matters within the scope of its power and authority. He, as well as the court below, is bound by the judgment therein entered, at least so long as the children remain in that State."

The order appealed from is reversed with instructions to dismiss the motion for change of custody for lack of jurisdiction.

Reversed with instructions.

QUINN, Associate Judge.

I dissent from the holding of the court that "the continuing jurisdiction of the District of Columbia court ceased when by that court's order the child, the subject of the custody proceeding, was removed from the District and placed in the custody of a resident of Maryland." I cannot agree that the trial court divested itself of jurisdiction by awarding custody to the child's maternal aunt, a friend of the court, who happened to live in Cabin John, Maryland. I think the majority has used a questionable rule of domicile to formulate a hard and fast rule of jurisdiction, neither of which is properly applicable to the case at bar.

According to the majority opinion, the domicile of the child had "changed from...