Estes v. Masner

• Decision Date: 06 May 1968
• Docket Number: No. 5--4499,5--4499
• Citation: 427 S.W.2d 161,244 Ark. 797
• Parties: Ruth ESTES, Appellant, v. Don MASNER et al., Appellees.
• Court: Arkansas Supreme Court

Page 161

427 S.W.2d 161

244 Ark. 797

Ruth ESTES, Appellant, v. Don MASNER et al., Appellees.

No. 5--4499.

Supreme Court of Arkansas.

May 6, 1968.

Terral, Rawlings, Matthews & Purtle, Little Rock, for appellant.

Pickens, Pickens & Boyce, and Kenneth Castleberry, Newport, for appellees.

FOGLEMAN, Justice.

This appeal is from a decree of the Independence Chancery Court holding appellant in contempt of court and modifying an original custody award. For reversal, appellant contends that the trial court was without jurisdiction to hear the citation for contempt; that the notice of the contempt hearing was improper and invalid; and that the custody change is invalid due to lack of prior notice.

As to the facts necessary to decide this case, the record reflects that the parties were divorced in 1959. The divorce decree awarded custody of the children to their paternal grandparents. In 1966, appellant petitioned the court for temporary custody of the children and the court granted the relief, allowing appellant custody for a two-week period. Appellant immediately fled the country and proceeded to Puerto Rico. The former husband, who is an appellee in the custody proceeding, went to Puerto Rico with his father (who had been awarded custody of the children in the 1959 decree) to regain custody, and, having been enjoined from taking the children out of Puerto Rico, he returned to this country and instituted criminal proceedings against appellant. ¹ Upon her return to the United States to answer the charges, appellant was arrested for contempt. Habeas corpus proceedings were commenced in this court, and a continuance was granted to have the records brought up. During the continuance, appellees filed a petition for citation for contempt in the trial court, and had the clerk mail notice of a hearing thereon to appellant. Upon failure of appellant to appear, the trial court held her in contempt for violation of the court's temporary order and modified the 1959 decree so as to award the former husband custody of the children.

Appellant's first contention is that the trial court lacked jurisdiction to hear the citation for contempt. She cites the proceeding in Puerto Rico and the habeas corpus hearing in this court, both of which were pending at the time of the trial court's action, as grounds for her contention.

The nature of the proceeding ² in the Puerto Rican courts is not clear from the record, but assuming arguendo that at the time of the trial court's disposition of this case there was pending a custody proceeding, such fact could have no effect on the jurisdiction of the trial court to punish, as for contempt, one who knowingly violated its order. This court has previously held that the mere pendency of a suit in another state did not preclude a suit in this state for the same cause. Moore & Company v. Emerick, 38 Ark. 203. With concern to the effect on the forum court of sister state judgments, Dr. Robert A. Leflar, in his work on the Conflict of Laws, § 70, p. 132, states: 'The mere pendency of an action in one state has no effect upon the right to bring an action in another. Whichever suit is first carried to judgment then bars the other, but it is only the rendition of judgment which has that effect.' As the case at bar involves only a pending suit in a foreign, rather than a sister state, court, it is obvious that the court below was in no way deprived of its jurisdiction to hold one in contempt for failure to comply with its valid custody order. See Lyerla v. Lyerla, 195 Kan. 259, 403 P.2d 989. There is no contention that the Independence Chancery Court lacked jurisdiction to enter the 1966 temporary custody order, which required that appellant return the children to the grandparents at the end of two weeks. By her failure to return the children, appellant subjected herself to punishment for contempt. Meeks v. State, 80 Ark. 579, 98 S.W. 378; State v. Dowdy, 86 Ark. 140, 109 S.W. 1175.

The pendency of the habeas corpus proceeding in this court likewise could have no effect on the jurisdiction of the trial court to hear the citation for contempt. It is true that once an appeal is taken to, and docketed in, this court, the trial court is deprived of jurisdiction to further act in the matter. Andrews v. Lauener, 229 Ark. 894, 318 S.W.2d 805. This is not to say, however, that the institution of a separate and distinct contempt hearing is precluded by the mere pendency of habeas corpus proceedings in this court. Proceedings in this court which are...