Summary
In Bridges v. Bridges, 227 Ala. 144, 148 So. 816, we held that the court could have provided for the custody of the child and its support and maintenance, but whether so or not, a proceeding thereafter concerning such matters may be begun in the same court by supplemental proceedings, and, further, that any pleading showing upon its face that the welfare of an infant requires an order in respect to its custody and maintenance is sufficient to invoke equity jurisdiction.
Summary of this case from Cleckley v. CleckleyOpinion
6 Div. 333.
May 18, 1933. Rehearing Denied June 22, 1933.
Appeal from Circuit Court, Jefferson County; Wm. M. Walker, Judge.
Thos. J. Wingfield, of Birmingham, for appellant.
A prayer by a complainant for the custody of a minor, which the bill shows she already has by agreement of respondent and as to which there is no question, cannot be used as the basis for bringing a common-law action in a court of equity. Equity will not entertain jurisdiction where there is an adequate remedy at law, nor will it lend its powers to accomplish a useless purpose. Dixie Grain Co. v. Quinn, 181 Ala. 208, 61 So. 886; Hardeman v. Donaghey, 170 Ala. 362, 54 So. 172; Hogan v. Scott, 186 Ala. 310, 65 So. 209; Cox v. Parker, 212 Ala. 35, 101 So. 657. The father's liability is the same to the divorced wife as to any other person, and if she supports the child after divorce without a decree giving the custody to her, he is liable for its maintenance under an implied contract at law, or, where there is an agreement, in an action upon the contract at law. The moral obligation of a parent to support his child is not directly enforceable and a court of equity cannot compel performance of this duty. 9 A. E. Ency. Law (2d Ed.) 971; 21 A. E. Ency. Law (2d Ed.) 1052; Alling v. Alling, 52 N.J. Eq. 92, 27 A. 655. Save for enforcement or correction, the entry of a final decree in a proceeding for divorce a vinculo will terminate the jurisdiction of the court over the subject-matter of the action and over the parties as to all matters involved in it. In the absence of reservation in its final decree, the circuit court is without authority, after expiration of the statutory period of thirty days through which its jurisdiction is preserved, to modify or change said decree. 2 Schouler (6th Ed.) 1927; Code 1923, § 6670.
Clark Williams, of Birmingham, for appellee.
The custody of infants is a matter of inherent jurisdiction in a court of equity. The bill in this case asks for the custody of a child and a reasonable support for it, cognizable only in the equity court. Thomas v. Thomas, 212 Ala. 85, 101 So. 738; Clinkscales v. Clinkscales, 210 Ala. 358, 97 So. 922; Murphree v. Hanson, 197 Ala. 246, 72 So. 437; McDaniel v. Youngblood, 201 Ala. 260, 77 So. 674; Woodruff v. Conley, 50 Ala. 304; Blackburn v. Moore, 206 Ala. 335, 89 So. 745; Coleman v. Coleman, 198 Ala. 225, 73 So. 473; Anonymous, 55 Ala. 428; Bryan v. Bryan, 34 Ala. 516; Hayes v. Hayes, 192 Ala. 280, 68 So. 351. The obligation of the father to support his child is a legal as well as moral duty. Englehardt v. Yung, 76 Ala. 534; Owen v. White, 5 Port. 435, 30 Am. Dec. 572. Whether or not reservation is made in the decree for further orders, a decree in regard to the custody of a child is subject to modification. Thomas v. Thomas, supra; Hayes v. Hayes, supra.
This is a bill filed by a divorced wife against her former husband, and seeks to have entered a decree making provision for the support of their minor child, and that its custody be awarded to her.
The bill shows that the decree of divorce neither awarded the custody of the child nor made provision for its support and maintenance, but alleges that she and respondent agreed that the respondent should pay complainant $30 a month for that purpose, and that, though he is well able to do so, and has an income of, to wit, $200 a month, he declines to pay her more than $15 a month, and that such amount is inadequate for that purpose.
The theory which appellant invokes, that the chancery court loses control of such matters when it renders a decree of divorce without reservation, has been abandoned by this court. Epps v. Epps, 218 Ala. 667, 120 So. 150; Ex parte Allen, 221 Ala. 393, 128 So. 801; Worthington v. Worthington, 224 Ala. 237, 139 So. 334; Aiken v. Aiken, 221 Ala. 67, 127 So. 819.
When the decree embraces the subject, the chancery court, without a reservation of the power, may upon a change of circumstances at any time thereafter modify the provisions of the decree to meet such changed conditions. Authorities supra.
The nature and effect of an agreement between parents fixing the amount of the provision for the maintenance of the child have been discussed and largely settled in our case of Worthington v. Worthington, supra. Such an agreement is not conclusive upon the court of chancery since it pertains to the welfare of infants, but it is subject to change or approval by that court as the circumstances may justify. Worthington v. Worthington, supra; 19 Corpus Juris, 251.
In the decree of divorce, that court could have provided for the custody of the child and its support and maintenance, but, whether so or not, a proceeding thereafter concerning such matters may be begun in the same court by supplemental proceedings, though they are treated in many respects as original (19 Corpus Juris, 353, 354, 355), with the right to review by appeal as any other original proceeding. Smith v. Smith, 218 Ala. 701, 120 So. 167. The chancery court has general jurisdiction respecting the duty of the father to support his minor children. Gabbert v. Gabbert, 217 Ala. 599, 117 So. 214. And any pleading which shows upon its face that the welfare of an infant requires an order in respect to its custody and support is sufficient to invoke equity jurisdiction. 31 Corpus Juris, 993, § 12; Murphree v. Hanson, 197 Ala. 246, 72 So. 437; Blackburn v. Moore, 206 Ala. 335, 89 So. 745.
It is no objection to a bill which seeks to have the custody of an infant fixed by court decree that complainant then may have its actual custody, but by no adjudged right, nor by the order of any court, if the bill shows that it would better serve the welfare of the infant that the court should assume jurisdiction and make suitable decree for its custody.
We think that complainant has not mistaken her remedy as indicated by the allegations of the bill, and that it was properly filed to invoke the relief sought.
The demurrer did not point out substantial defects in the bill, and it was properly overruled.
Affirmed.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.