Opinion
No. 33003.
January 24, 1938.
1. PARENT AND CHILD.
Where a parent, without just cause, deserts his infant child for such a length of time and under such circumstances as to show an intent to evade the duty of rearing child or a callous indifference to its wants, parent is guilty of such "abandonment" of child as to bar his right to reclaim child's custody from any person who may have ministered to child during period of desertion, since conduct conclusively rebuts legal presumption that child's welfare would, other things being equal, be best served by custody of parent.
2. PARENT AND CHILD.
Where a parent, for any just and reasonable cause, permits his child to remain in another person's custody under such circumstances as to show that parent did not intend to sever relation of parent and child or to shirk his duty of rearing and maintaining child and was not indifferent to its welfare, conduct does not bar parent's right to reclaim custody, notwithstanding affectionate feeling between child and custodian.
3. PARENT AND CHILD.
Where maternal grandparents residing in state were awarded custody of child by divorce decree entered in another state where parents were residing, and parents agreed that they would not disturb grandparents' custody, evidence that father seldom visited state, contributed nothing toward child's support, and bestowed no attention on child, supported finding that father had "abandoned" child and was not entitled to custody.
4. JUDGMENT.
The question of jurisdiction of a foreign court is always open to inquiry.
5. DIVORCE.
A Tennessee court which had awarded custody of child to maternal grandparents residing in Mississippi by divorce decree leaving open question of further custody had no jurisdiction to award custody to father, where father had abandoned child, and child had never been domiciled in Tennessee, and decree awarding custody to father was not binding on Mississippi courts under full faith and credit clause of Federal Constitution, since that clause does not apply to the judgment of a court of another state having no jurisdiction (Const. U.S. art. 4, section 1).
APPEAL from the chancery court of Tallahatchie county. HON. R.E. JACKSON, Chancellor.
Roberts Smith, of Cleveland, and Wm. L. Allan, of Memphis, Tenn., for appellant.
There is no attempt in this case to impeach the divorce between the appellant and his former wife, the mother of the child. The only question is as to whether the decree of the Tennessee Court is valid where it awards the custody of the child. When the custody of the child was awarded to the grandparents, the appellees here, and the jurisdiction was retained for such other and further orders of that court to be made from time to time, touching the welfare of the minor child, and if, as we contend, the appellees here, submitted themselves to the jurisdiction of the Tennessee court in 1935 when the minor child was within the jurisdiction of the court, and the decree awarding the custody of the child to the father during the school term and to the grandparents during the vacation period was a valid decree, then we submit that under the language of the Federal Constitution, to-wit: "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of each other state." Art. IV, Sec. 1.
We submit that the court below erred in holding that "Any and all orders and proceedings had by the Tennessee court, touching the care and custody of the minor, William Truman McAdams, are void for the reason that the Tennessee court never had jurisdiction of the person of said minor," and we submit that on this question the case should be reversed and judgment entered in favor of the appellant, awarding him the custody of his minor son.
Haynie v. Hudgins, 85 So. 99.
Our courts have been called upon in several cases to pass upon the question of what constitutes an abandonment and in every case that we have examined, the facts constituting are clearly supported by the testimony. In the case of McShan v. McShan, 56 Miss. 413, the father deserted the mother and one of the children and left them destitute and for the space of three years the father contributed nothing to the support of his wife or children and did not return to see his wife or children during that time. This is clearly a case of abandonment. In the case of Fullilove v. Banks, 62 Miss. 11, the character of the mother who was seeking the child was such as to grant the court the right to award the custody of the child as was done in that case. In the case of Morgan v. Shelley, 111 Miss. 868, the father who was seeking the custody of the child had for twelve years not visited the child nor contributed to its support and did not even recognize the child when he saw it. This was a clear case of abandonment.
Amis on Divorce and Separation in Mississippi, sec. 216; Hibbette v. Baines, 78 Miss. 695.
The courts have held that the father (as in this case the mother not desiring the child) would be clearly entitled to the custody of the child unless it has been shown that the father forfeited his right to the child by abandonment or immoral conduct.
Weir v. Morley, 99 Mo. 494, 6 L.R.A. 672; Stegall v. Stegall, 151 Miss. 875, 119 So. 802.
In the present case, the elements of abandonment by the father of his minor child are lacking. He did not leave the child to the tender mercy of a hostile world. In the first place, the child was with the mother until it was about two years old. A part of the time the mother was living with the father but when the mother decided to separate from the father of the child, the mother carried the child to the home of appellees. It was about this time that the appellant purchased a home and the appellees, with the minor child, moved onto the land so purchased. The testimony further shows that the appellant visited this home from time to time and on one occasion, when he had been laid off from his regular work as a saw filer, he actually lived in the home so purchased by him and at that time in the possession of the appellees, where the child was residing. The testimony is replete with facts that would contradict the idea of an abandonment of the child by its father.
We submit that on the question of abandonment, the rulings of the court below are absolutely contrary to the evidence and that this court on this question will reverse the decree of the lower court.
Unless the facts developed in the evidence should constitute an abandonment by William Hugh McAdams of his minor child, then we submit that the wishes of the child and the wishes of the grandparents should not have the controlling effect that it appears the court below gave in rendering his opinion.
Watts v. Smylie, 76 So. 684.
We submit that Section 221 of Divorce and Separation in Mississippi by Amis, states the conclusions of the cases decided by our highest court. This section: "Since no person can have property rights or proprietary interest in a child or in its care, custody and training, and since in all contests regarding its custody, the chief concern of the court is the best interest of the child, it is generally held that when a contract made by a parent by which the care, custody or training is permanently transferred to a third person is void as being against public policy. Hibbette v. Baines, 78 Miss. 695, 29 So. 80. But if the contract taken in connection with the conduct of the parent was such as to amount to an abandonment of the child, the rule is otherwise; because in such a case the good of the child lies that it remain with its foster parent. Fullilove v. Banks, 62 Miss. 11; Morgan v. Shelley, 111 Miss. 868, 72 So. 700."
In order to construe the meaning of the last statement above it will be necessary briefly to analyze the two cases cited. In the Fullilove case, the character of the mother who made the promise, was such to warrant the court in arriving at the conclusion that the custody should not be disturbed. In the present case the character of the father cannot be assailed. In the Morgan case, the father seeking the custody of the child had no contact with and did nothing in the support of said child and did not recognize the child in any manner until he became twelve years of age, and in addition to this, the father was shown not to be a person suitable morally to have the custody of his son, the court stating that the father "is profane, is a drunkard, and lives amidst immoral environments." These two cases were decided by the court upon the promise of the parent seeking the custody of the child, taken in connection with the conduct of the parent and the moral character of the parent as well as the facts set up constituting an abandonment.
The case before the court is so clearly differentiated by the facts shown in the testimony with reference to the question of abandonment, the moral conduct of the parent, and the alleged promise that the conclusions reached in these two cases cannot be applied to the case at bar.
Richard Denman, of Greenwood, and J.J. Breland, R.L. Cannon, and L.Q. Strong, all of Sumner, for appellees.
The Tennessee court never had jurisdiction of the child.
We submit that, as held by the Chancellor, the predominant weight of the evidence proves that prior to the divorce proceedings the appellant had abandoned his child to its grandparents, the appellees. This being true, in common sense, reason and law, the domicile of the child ceased to follow that of its father, the appellant, and became an incident to, and followed that of its foster parents, the appellees. Wherefore, the Tennessee court did not acquire any jurisdiction over the child, and could not thereafter assert an alleged jurisdiction incidental to a basic jurisdiction that never existed.
In support of the proposition that the actual situs of the child is determinative of the jurisdiction vel non over the custody of the child, we cite: Steele v. Steele, 152 Miss. 365, 118 So. 721; Seeley v. Seeley, 30 App. (D.C.) 191, 12 Ann. Cas. 1058, 209 U.S. 544, 52 L.Ed. 919; Duryea v. Duryea, 46 Idaho, 512, 269 P. 987; Woodworth v. Spring, 4 Allen (Mass.), 321.
The Chancellor held, and the record shows, that by the manifest weight of the evidence appellant abandoned the child to the appellees.
Amis on Divorce and Separation in Mississippi, sec. 216; Hibbette v. Baines, 78 Miss. 695, 29 So. 80.
There is no issue here as to the substantive law of the case; the single question is as to the correctness of the Chancellor's finding that the appellant had abandoned the child. As a matter of fact, the cause was tried before a chancellor; but as to this finding of fact there would be no difference as to the law applicable on appeal, had it been tried before a circuit judge.
Langston v. Farmer, 176 Miss. 820, 170 So. 233; Sellers Motors Co. v. Champion Spark Plug Co., 150 Miss. 473, 116 So. 883; Steele v. Ferrer, 150 Miss. 711, 116 So. 616; Leavenworth v. Hunter, 150 Miss. 750, 117 So. 122; Stevenson v. Swilley, 156 Miss. 552, 126 So. 195; Bacot v. Holloway, 140 Miss. 120, 104 So. 696.
We admit that, as said in the Hibbette case, one asserting the abandonment of a child by its father has the burden of showing clearly such abandonment. But we submit that this does not require that such abandonment be shown beyond controversy. If such were the rule, it is doubtful whether abandonment could be shown in any case. We submit that the only requirement of the rule is that in the welter of dispute and contradiction, there be sufficient competent, credible evidence to convince the judgment and satisfy the conscience of the Chancellor; and that when this has been done, and he has acted in the performance of his sworn official duty, his judgment and decision is not to be gainsaid.
We agree that the life of a child is too sacred a thing to be the subject of contract or of barter. We insist, too, that the life of a child is too sacred a thing to be bandied about by the whims and caprices of an indifferent parent who, though able to support, cherish and develop it, abandons it to the care, the love, and the tender mercies of others. Further than this, we deem it sufficient to say here, as we have in effect repeatedly said before, that the Chancellor did find that appellant's promise, taken in connection with his subsequent conduct — which conduct spoke louder than works — amounted to an abandonment of this child to its grandparents, the appellees; and that this finding of the Chancellor is amply supported by the evidence, as shown by the record.
Amis on Divorce and Separation in Mississippi, sec. 221.
Appellant brought habeas corpus proceeding in the chancery court of Tallahatchie county against appellees to recover the custody of his son, Truman McAdams, appellees being the child's maternal grandparents and having his custody. The cause was heard on petition for the writ, answer, and proofs, resulting in a decree denying the prayer of the petition.
Appellant married a daughter of the appellees. At the time they all resided in Tallahatchie county in this state, and continued so to do until shortly after June 25, 1926; on that date a son was born, who was named Truman McAdams, the subject of the controversy here. Shortly after the birth of the child appellant left the state and became a resident of Memphis, Tenn., and has so continued since. A short time after he left the state his wife left and became a resident of Memphis, Tenn.; however, they have never lived together as man and wife since leaving this state. In 1930 the wife obtained a divorce from appellant in the circuit court of Shelby County, Tenn., of which Memphis is the county seat. In the decree the maternal grandparents, appellees, were awarded the custody of the child. The decree, however, expressly left open the further custody of the child as might appear to the court to be to his best interest. The mother of the child remarried, the father never has. Before leaving the state, the father and mother turned the child over to appellees, and the evidence tended to show that they agreed with appellees that they would never disturb their custody of him. In 1935 the child was in ill health, his father took him to Memphis for treatment. He refused to allow the child to return to his grandparents, the grandfather went to Memphis and took him by force and brought him back to his home in Tallahatchie county.
In the spring of 1935 and in January, 1936, appellant had the Shelby county circuit court amend the decree touching the custody of the child so as to award it to him during the school months and to the grandparents during the vacation of the school. The grandparents were not parties to the Memphis court proceeding. At the time of the trial of this cause in the chancery court the child was between nine and ten years old.
Appellant contends that he never abandoned his son, and therefore under the law is entitled to his custody, and that the decree of the Shelby county court awarding him the custody of the child is binding on the courts of this state under the full faith and credit clause of the Federal Constitution, article 4, section 1.
We think the evidence, although conflicting, was sufficient to sustain the chancellor's finding of facts, as well as of law. The findings are embodied in an opinion in the record as follows:
"Wm. Hugh McAdams and Birdie Mae McFerron were married in Tallahatchie County. Truman was born to them there. Within a few days after the birth of the said child Wm. Hugh McAdams carried both the mother and child to the home of Chas. and Myrtle McFerron — father and mother of Mrs. McAdams — and grandparents of Truman McAdams, went to Memphis and obtained work and has never lived in Tallahatchie County or the State of Mississippi since. Thereafter Mrs. McAdams went to Memphis and obtained work. Likewise she has never lived in Tallahatchie County or Mississippi since. Truman was left by his father and mother with the McFerrons where he has continuously lived since his birth and for a period of approximately ten years.
"Subsequent to the removal of McAdams and his wife to Memphis, Tenn., divorce proceedings were had by and between the said McAdams and his wife in Tennessee and the Tennessee Court undertook to award the custody of Truman to the McFerrons, although Truman was not then, nor has he since ever been, a resident of the State of Tennessee.
"This court, after hearing testimony in this cause at two trials, is of the opinion that any and all orders and proceedings had by the Tennessee courts touching the `care and custody' of the minor, Truman McAdams, are void for the reason the said Tennessee court never had jurisdiction of the person of said minor.
"The only other question presented by the record is: `Do the facts as disclosed by the record prove that McAdams has abandoned the said Truman McAdams?' The general rule in determining this question is: `The welfare of the minor is a matter of paramount consideration.' It is, as said by some courts, the Pole Star.
"When Truman was a mere babe he was left with the McFerrons with the promise by McAdams that he would never disturb that custody; likewise the mother made the same provision. Thereafter, through the years, the McFerrons, with this assumption that they would never be disturbed in their care, nurture and custody of Truman, did take the child when but a babe, a few days old, nursed, cared for it as only a devoted father and mother could. During these years McAdams lived in Memphis, drew a good salary, and the weight of the evidence discloses that he seldom came to Tallahatchie County; never evinced any special affection for Truman or spent any of his salary towards the boy's care or attention or spent any of his time with his child, nor did he contribute anything towards his support, and, so far as the weight of the evidence shows, he never bestowed any attention, affection or fatherly assistance on the boy.
"It is undisputed that the McFerrons are good people, though in moderate circumstances, and are fit and suitable persons to have the care and custody of the child. That through these years a warm, deep and affectionate attachment, such as exists between parent and child, has been formed between Truman and his grandparents, and both Truman and the grandparents desire to remain together in the ties of affection which time has made permanent and binding. With these facts before me this court will not separate this child from its grandparents. To do so would not only be cruel and unjust but it would be contrary to the law in Mississippi.
"See Morgan v. Shelly, 111 Miss. 868, 72 So. 700.
"It is, therefore, the opinion of the Court that the great weight of the testimony discloses that McAdams has abandoned his child to that extent that the best interests and the permanent welfare of Truman will best be served by leaving him in the care and custody of the McFerrons."
In the Morgan-Shelly Case the court held that it would be presumed to be for the best interest of the child to be with its father unless his unfitness or abandonment of the child be shown; that, where the father was unfit to rear the child or had abandoned it when only a few days old, he could not after twelve years of desertion invoke the aid of the courts to restore its custody to him, where during that period it had been reared by foster parents and had become by attachment their own child.
Appellant, as well as appellees, relies on section 216 of Amis on Divorce and Separation in Mississippi, which we think correctly states the governing principles of law. That section is in this language: "A careful study of the reported cases shows that where a parent, without just cause or excuse, forsakes or deserts his or her infant child, for such a length of time, and under such circumstances, as to show an intent to shirk or evade the duty, trouble or expense of rearing it, or a callous indifference to its wants, or a reckless disregard of its welfare, he or she is guilty of such an abandonment of it as to bar his or her right to thereafter reclaim its custody from any person who may have ministered to and protected it during such period of desertion. McShan v. McShan, 56 Miss. 413; Fullilove v. Banks, 62 Miss. 11; Morgan v. Shelly, 111 Miss. 868, 72 So. 700. Such conduct conclusively rebuts and overthrows the legal presumption that the welfare of the child would, other things being equal, be best served by the custody and control of the parent. Having once deserted the child there is no guaranty that such a parent might not in the future be guilty of some other equally atrocious conduct toward it. But if a parent, out of regard for the feelings or affections of kindred, or for purposes of education or training, or for any other just and reasonable cause, permits or allows a child to remain in the custody of another person, under such circumstances as to show that he or she did not intend to sever the relation of parent and child, or to shirk or evade the duty of rearing and maintaining it, and was not callous or indifferent as to its welfare, then such conduct does not bar his or her right to reclaim its custody, even though during such time the affections of the child and the custodian for each other may have grown to be very great. In such a case the affections of the custodian can not outweigh the right of the parent, if otherwise suitable to have the custody. Hibbette v. Baines, 78 Miss. 695, 29 So. 80, 51 L.R.A. 839; Nickle v. Burnett, 122 Miss. 56, 84 So. 138."
The chancellor found that appellant's conduct came within the principle first stated in that section.
The full faith and credit clause of the Federal Constitution has no application to the judgment of a court of another state which has no jurisdiction. The question of jurisdiction of a foreign court is always open to inquiry. Huntington v. Attrill, 146 U.S. 657, 685, 13 S.Ct. 224, 36 L.Ed. 1123; Thormann v. Frame, 176 U.S. 350, 356, 20 S.Ct. 446, 44 L.Ed. 500; Bell v. Bell, 181 U.S. 175, 21 S.Ct. 551, 45 L.Ed. 804; Streitwolf v. Streitwolf, 181 U.S. 179, 21 S.Ct. 553, 45 L.Ed. 807; Steele v. Steele, 152 Miss. 365, 118 So. 721; Woodville v. Pizzati, 19 Miss. 442, 81 So. 127; Miller v. Ewing, 8 Smedes M. 421, 16 Miss. 421. The child was never domiciled in Tennessee; it never had any situs there; its domicile was always in Mississippi. The Shelby county court was therefore without jurisdiction to award its custody to appellant.
Affirmed.