Summary
In Steele v. Steele, 152 Miss. 365, 118 So. 721, the court said: "It is a well established rule that when the full faith and credit clause of the Constitution is invoked to compel an enforcement of a judgment or decree in another state, the question of the jurisdiction of the court of rendition is always open to inquiry.
Summary of this case from Hatrak v. HatrakOpinion
No. 27406.
November 5, 1928. Suggestion of Error Overruled December 3, 1928.
1. STATES. Jurisdiction is open to inquiry when full faith and credit clause is invoked to compel enforcement of judgment or decree ( Constitution U.S., article 4, section 1).
Where provision of Federal Constitution, article 4, section 1, guaranteeing full faith and credit in each state to judicial proceedings as to every other state, is invoked to compel enforcement of judgment or decree in another state, the question of jurisdiction in court of rendition is always open to inquiry.
2. DIVORCE. Divorce decree in another state is of no effect so far as awarding custody of children not within jurisdiction of court.
Decree for divorce rendered in another state, awarding custody of children, when neither defendant nor children were within jurisdiction of such court, is of no effect so far as it pertains to awarding custody of children.
3. DIVORCE. Best interests of child is paramount inquiry in determining custody.
In determining custody of child after separation of parents, the best interests of the child is always the paramount inquiry.
APPEAL from chancery court of Wilkinson county, HON. R.W. CUTRER, Chancellor.
Tucker Tucker, for appellant.
The rule adopted by all state courts is, where the decree of divorce is rendered in the state of the matrimonial domicile of both parties, such decree shall be given full faith and credit.
The supreme court of the United States has gone further and held; that the prior decree of divorce for one of the parties domiciled in the state rendering the decree shall be given full faith and credit when plead against a subsequent valid decree for the other party rendered at such party's legal domicile in another state. Haddock v. Haddock, 201 U.S. 562; Maynard v. Hill, 124 U.S. 190, 31 L.Ed. 654, 8 Sup. Ct. Rep. 723; Atherton v. Atherton, 181 U.S. 175, 45 L.Ed. 654, Sup. Ct. Rep. 544; Thompson v. Thompson, 226 U.S. 551.
This court has held that a decree for alimony granted by the court of another state should be established and enforced by equity courts of this state in the same manner and to the same extent as though originally obtained in this state. Fanchier v. Gammill, 148 Miss. 723, 114 So. 813.
D.C. Bramlette, for appellee.
A decree of divorce may be impeached collaterally in the courts of another state by proof that the court granting it had no jurisdiction because of plaintiffs want of domicile, even when the record purports to show such jurisdiction and the appearance of the other party. Dormitzer case, 24 S. St. 331, 192 U.S. 125, 48 L.Ed. 373.
The mere domicile within the state of one party to the marriage does not give the courts of that state jurisdiction to render a decree of divorce enforceable in all other states by virtue of the full faith and credit clause of the Federal Constitution against a nonresident who did not appear and was only constructively served with notice of the pendency of the action. Haddock v. Haddock, 26 C. St. 525, 201 U.S. 562, 50 L.Ed. 867; Larson v. Larson, 82 Miss. 116, 33 So. 717.
Where a child was brought into this state and is in the custody of her father, a resident of this state, in a habeas corpus proceeding brought by the mother for the possession of the child, and the answer of the father to the petition alleges an abandonment of the child by the mother, and that subsequent to the decree of the divorce of a sister state awarding its custody to the mother she has become an unfit and unsuitable person to have the custody of the child, his court has jurisdiction to inquire into the merits of the controversy. Haynie v. Hudgins, 122 Miss. 838, 85 So. 99.
This is a habeas corpus contest between Alexander M. Steele, the husband, and Mary Steele, the wife, over the custody of their minor child, a girl five years of age.
The husband, a resident of Baton Rouge, Louisiana, filed his petition before the chancellor of Wilkinson county, this state, where the wife and child then resided.
The parties formerly lived together as husband and wife in Lousiana, but separated in August, 1927. The wife, upon the separation, left Louisiana, bringing the child with her, and took up her abode in Wilkinson county.
There was exhibited to the petition a decree of divorce rendered in Louisiana, the domicile of the husband, in which decree the permanent custody of the child was awarded to the husband. This decree was rendered in October, 1927, without personal service upon the wife, and there was no voluntary appearance. The ground charged for divorce was adultery, and was brought under a Louisiana statute, Merrick's Revised Civil Code (2 Ed.), which provides:
Article 139: That without a separation from bed and board a divorce can be granted where husband or wife may have been sentenced to an infamous punishment, or guilty of adultery.
Article 141: "When the defendant is absent or incapable of acting from any cause, an attorney shall be appointed to represent him, against whom, contradictorily, the suit shall be prosecuted.
Act 296 of 1910, provides for appointment of curator ad hoc in suits for separation from bed and board and divorce.
Article 157: ". . . In all cases of divorce, the minor children shall be placed under the tutorship of that party who shall have obtained the divorce."
Pursuant to the statute an attorney of Baton Rouge, La., was appointed curator ad hoc to the defendant. The wife responded to the habeas corpus petition under oath, in which she denied all charges of infidelity, and averred that she had no notice or knowledge of the filing or pendency of said divorce suit, and that said decree was illegal and void because of the want of jurisdiction of the Louisiana court to award the custody of said child. The answer further sets forth the reasons why she, rather than appellant, should have the custody of the child. Among other things, she alleges that on account of neglect of petitioner, and his denial of necessities to respondent and the child, and his "insane and groundless charges" against her, she was forced to return to her former home in Wilkinson county, where she had resided with her father on a farm since the separation.
The chancellor, upon a full hearing, ordered that the petition be dismissed, and adjudged and decreed that the custody of the child be awarded to the mother, "with the privilege of the father, A.M. Steele, to visit said child at reasonable intervals."
Appellant insists that the decree of the Louisiana court is conclusive; that, under our Federal Constitution, article 4, section 1, "full faith and credit" must be given to this decree.
It is a well-established rule that when the full faith and credit clause of the Constitution is invoked to compel enforcement of a judgment or decree in another state, the question of the jurisdiction of the court of rendition is always open to inquiry. Haddock v. Haddock, 201 U.S. 562, 26 S.Ct. 525, 50 L.Ed. 867, 5 Ann. Cas. 1; National Exchange Bank v. Wiley, 195 U.S. 259, 25 S.Ct. 70, 49 L.Ed. 184; German Savings Loan Association v. Dormitzer et al., 192 U.S. 125, 24 S.Ct. 221, 48 L.Ed. 373.
Since neither the mother nor the child, at the time of the decree of divorce, were within the jurisdiction of the Louisiana court, was the chancellor precluded from determining the custody of this child?
In Seeley v. Seeley, 30 App. D.C. 191, 12 Ann. Cas. 1058, the court of appeals of the District of Columbia held:
"The single question in this case is whether such a decree precludes the court below from determining the custody of this child, who was within this jurisdiction when the proceedings for a divorce were instituted in Chicago, and who has remained in this jurisdiction ever since. We are of opinion the Chicago court was without power to pass a decree preventing the court below from deciding concerning the custody and care of this infant, all the while physically within its own jurisdiction. The welfare of infants is a matter of paramount consideration at all times and under all circumstances. Courts of competent jurisdiction will always extend their arms to protect infants. The interest of infants is even paramount to the claim of both parents. This is the predominant question to be considered by the tribunal before whom the infant is brought. The rights of the parents must in all cases yield to the interest and welfare of the infant. No certain rule can be laid down, but the courts must hold the best interests of the children as of primary importance."
In Kline v. Kline, 57 Iowa, 386, 10 N.W. 825, 42 Am. Rep. 47, the supreme court of Iowa held:
"We think it logically follows, that where the minor children are nonresidents of the state where the divorce proceedings are had, the court acquires no jurisdiction as to their custody, simply because the decree can have no extra-territorial force or effect. In Cooley's Const. Lim., p. 404, it is said: `The publication which is permitted by the statute is sufficient to justify a decree in these cases changing the status of the complaining party, and thereby terminating the marriage, and it might be sufficient also to empower the court to pass upon the question of the custody of the children of the marriage, if they were within the jurisdiction; if they acquire a domicile in another state or country, the judicial tribunals of that state or country would have authority to determine the question of their guardianship there.'
"In Woodworth v. Spring, 4 Allen [Mass.] 321, it is said: `Every sovereignty exercises the right of determining the status or condition of persons found within its jurisdiction. The laws of a foreign state cannot be permitted to intervene to affect the personal rights or privileges even of their own citizens, while they are residing on the territory and within the jurisdiction of an independent government. . . . The question whether a person within the jurisdiction of a state can be removed therefrom depends, not on the laws of the place whence he came, or in which he may have had his domicile, but on his rights or obligations as they are fixed and determined by the law of the state or country in which he is found.'"
It is our conclusion that a decree for divorce rendered in another state awarding the custody of children, when neither defendant nor children were within the jurisdiction of such court, is of no effect so far as it pertains to the awarding of the children. Harris v. Harris, 115 N.C. 587, 20 S.E. 187, 44 Am. St. Rep. 471; De la Montanya v. De la Montanya, 112 Cal. 101, 44 P. 345, 32 L.R.A. 82, 53 Am. St. Rep. 165; Rodgers et al. v. Rodgers et al., 56 Kan. 483, 43 P. 779.
Touching the custody of the child, we think the case stood before the chancellor as if there had been no former decree and the matter was before him to be determined as to what would be for the best interests of the child. In such cases this is always the paramount inquiry. Haynie v. Hudgins, 122 Miss. 838, 85 So. 99. The chancellor had the parties and all the facts before him. Broad latitude was given at the hearing. The mother is not shown to be wholly unworthy. She stoutly denies guilt of adultery. Appellant himself, on being asked about this charge, said:
"Q. Isn't it true that she was charged with disorderly conduct or playing in the park? A. Disorderly conduct was what she was charged with.
"Q. That was all, wasn't it? A. That is all."
As usual in such cases, there were charges and counter charges, but we think it safer to uphold the finding of the chancellor on the facts. The child is of young and tender age needing the attention of its mother. The father is given permission to visit the child at all reasonable intervals.
The decree of the learned chancellor is affirmed.
Affirmed.