Opinion
No. 40991.
January 19, 1959.
1. Courts — divorce — jurisdiction — where husband had established legal residence in Mississippi, Trial Court had jurisdiction in divorce action notwithstanding pendency of undecided divorce action brought by husband in foreign state and Trial Court was warranted in refusing to apply doctrine of comity.
Where husband, who had established necessary legal residence in Mississippi, brought an action for divorce on ground of adultery and personal service of process was had on wife, court was not precluded from entertaining jurisdiction on ground that there was a pending undecided divorce proceeding brought by husband in Pennsylvania on ground of indignities and cruel and barbarous treatment, and Trial Court was amply warranted in refusing to apply doctrine of comity.
2. Divorce — pendency of foreign divorce action not a bar nor cause for stay of proceedings to similar action between same parties in state where jurisdiction of defendant is obtained by personal service of process.
Pendency of an action for divorce in another state is not a bar nor a cause for a stay of proceedings in a similar action between same parties in state where jurisdiction of defendant is obtained by personal service of process.
3. Actions — stay of proceedings not a matter of right, but rests within sound discretion of court.
A stay of proceedings is not a matter of right, but rests within sound discretion of court.
4. Divorce — foreign divorce decree denying husband divorce on ground of cruel and barbarous treatment not res judicata as to Mississippi divorce action for adultery committed by wife subsequent to institution of action in foreign court.
Pennsylvania divorce decree denying husband a divorce on ground of indignities and cruel and barbarous treatment was not res judicata as to a Mississippi divorce action brought by husband for adultery committed by wife subsequent to institution of Pennsylvania Action.
5. Courts — child custody — jurisdiction — where husband and infant daughter had established legal residence in Mississippi court had jurisdiction of divorce action to determine child custody notwithstanding order of foreign court awarding temporary custody to mother.
Where husband and his infant daughter had established legal residence in Mississippi, court had jurisdiction in divorce action to determine right to custody of child notwithstanding order of Pennsylvania court awarding temporary custody of child to mother.
6. Judgment — foreign judgment has no constitutional claim to a more conclusive or final effect in State of forum than in State where rendered.
A foreign judgment has no constitutional claim to a more conclusive or final effect in the state of the forum than it has in the state where rendered.
7. Divorce — temporary custodial decree by foreign court had no constitutional claim under full faith and credit clause of Federal Constitution to final and conclusive effect in Mississippi in which subsequent action for divorce was brought.
Award of temporary custody of child by Pennsylvania court had no constitutional claim under the full faith and credit clause of the Federal Constitution to final and conclusive effect in the State of Mississippi in which subsequent action for divorce was brought. Sec. 1, Art. IV, U.S. Constitution.
Headnotes as approved by Ethridge.
APPEAL from the Chancery Court of Bolivar County, R.E. JACKSON, Chancellor.
Brewer Brewer, Clarksdale, for appellant.
I. This Court should accord full faith and credit to a custody and divorce order of a court of another state.
A. When the Pennsylvania court incorporated the terms of the stipulation in an order, the order constituted an adjudication of custody and divorce satus as of the time of the rendition of the order. Fortson v. Fortson, 195 Ga. 750, 25 S.E.2d 518; Perry v. Perry, 212 Ga. 668, 95 S.E.2d 2; 17A Am. Jur., Divorce and Separation, Sec. 822; 27 C.J.S., Divorce, Sec. 311.
B. The United States Constitution requires Mississippi to give the Pennsylvania custody order full faith and credit. Cole v. Cole, 194 Miss. 292, 12 So.2d 425; Haynie v. Hudgins, 122 Miss. 833, 85 So. 99; Little v. Little, 249 Ala. 144, 30 So.2d 386; Poole v. Mississippi Publishing Co., 208 Miss. 364, 44 So.2d 467; State v. Black, 239 Ala. 644, 196 So. 713; State v. Superior Court, 25 Wn.2d 125, 169 P.2d 626; Strickland v. Humble, 194 Miss. 194, 11 So.2d 20; Art. IV Sec. 1, U.S. Constitution; Anno. 171 A.L.R. 1399; Keezer On The Law of Marriage Divorce, Sec. 552.
C. Complainant should not be permitted to abandon his action in Pennsylvania. Mitchell v. Film Transit, 194 Miss. 550, 13 So.2d 154; State v. Hemingway, 69 Miss. 491, 10 So. 575; Standard Pennsylvania Practice, Sec. 9; Griffith's Miss. Chancery Practice, Sec. 534.
D. Any jurisdiction acquired by the Mississippi courts should not be exercised. Am. Jur., Courts, Sec. 90; C.J.S., Courts, Sec. 90; Anno. 19 A.L.R. 2d 301; Griffith's Miss. Chancery Practice, Sec. 42.
Talbot, Sullivan Dunbar, Clarksdale; Gordon Kendall, Jackson, for appellee.
I. On the merits, the decree of the Lower Court is incontrovertibly correct. Bassett v. Sims, 220 Miss. 210, 70 So.2d 530; Bland v. Stoudemire, 219 Miss. 526, 69 So.2d 225; Cassell v. Cassell, 211 Miss. 841, 52 So.2d 918; Evans v. Evans, 195 Miss. 320, 15 So.2d 698; Scott v. Scott, 219 Miss. 614, 69 So.2d 489; 27 C.J.S., Divorce, Sec. 303 p. 1162.
II. No case is here presented for the application of the full faith and credit doctrine, either as to the New York or Pennsylvania proceedings. Bagwell v. Bagwell, 153 Fla. 471, 14 So.2d 841; Blauvelt v. Blauvelt, 199 Ark. 710, 136 S.W.2d 201; Coleman v. Coleman, 157 Fla. 515, 26 So.2d 445; Cox v. Cox, 144 A.2d 485; Etheridge v. Webb, 210 Miss. 729, 50 So.2d 603; Gaud v. Gaud, 203 Ark. 244, 156 S.W.2d 225; Gordon v. Gordon (Fla.), 59 So.2d 40; Hardy v. O'Pry, 102 Miss. 197, 59 So. 73; Pace v. State ex rel. Rice, 191 Miss. 780, 4 So.2d 270; Pate v. Evans, 232 Miss. 6, 97 So.2d 737; Thompson v. Hill, 152 Miss. 390, 119 So. 320; Van Norman v. Van Norman, 205 Miss. 114, 38 So.2d 452; Viator v. Stone, 201 Miss. 487, 29 So.2d 658; Wilson v. Wilson, 190 Miss. 334, 22 So.2d 161; 17 Am. Jur., Divorce, Secs. 544, 547 pp. 639, 643; 17A Am. Jur., Divorce, Sec. 942 p. 126; 27 C.J.S., Divorce, Sec. 326 p. 1271.
III. Since the record of the Pennsylvania and New York proceedings were not introduced, they cannot be considered on this appeal for any purpose. Armstrong v. Jones, 198 Miss. 627, 22 So.2d 7; Bridgeman v. Bridgeman, 192 Miss. 800, 6 So.2d 608; Cox v. Cox, 233 Miss. 747, 102 So.2d 799; Interstate Co. v. Jolly, 156 Miss. 199, 125 So. 406; Pate v. Evans, supra; Viator v. Stone, supra.
IV. The Court below was manifestly correct in overruling appellant's motion since the pendency of foreign proceedings was no ground for dismissal of this case. Streckfus Steamers v. Kiersky, 174 Miss. 124, 163 So. 830; 1 Am. Jur., Abatement and Revival, Sec. 39 p. 42; 1 C.J.S., Abatement, Sec. 75; 1 C.J.S., Actions, Sec. 133 (c) 6; 27 C.J.S., Divorce, Sec. 99 p. 684.
V. The question of granting a stay of the proceedings was addressed to the sound discretion of the Lower Court and there is no showing of an abuse of discretion. Beneke v. Tucker, 90 Or. 230, 176 P. 183; Cox v. Cox (Pa.), 137 A.2d 779; Cox v. Cox (Pa.), supra; Evans v. Evans (Tex. Civ. App.), 186 S.W.2d 277; Greenberg v. Greenberg, 11 N.J. Super. 582, 78 A.2d 723; Lanova Corp. v. Atlas Imperial Diesel Engine Co., 44 Del. 593, 64 A.2d 419; Mills v. Howard (Tex. Civ. App.), 228 S.W.2d 906; Newell v. Newell, 77 Idaho 335, 293 P.2d 663; In re Stockman, 71 Mich. 180, 38 N.W. 876; Anno. 19 A.L.R. 312, et seq.
VI. Under any circumstances, the foreign custody proceedings present no bar to this action insofar as custody of the minor child is concerned. Bassett v. Sims, supra; Cole v Cole, 194 Miss. 292, 12 So.2d 425; Evans v. Evans, supra; Findley v. Findley, 240 N.Y. 429, 148 N.E. 624; Gallant v. Gallant, 154 Miss. 832, 123 So. 883; Hatrak v. Hatrak, 206 Miss. 239, 39 So.2d 779; Haynie v. ___ 122 Miss. 838, 85 So. 99; Latham v. Latham, 223 Miss. 263, 78 So.2d 147; Logan v. Rankin, 231 Miss. 749, 94 So.2d 330; Scott v. Scott, supra; Wear v. Wear, 130 Kan. 205. 285 P. 605; 39 Am. Jur., Sec. 25 p. 614; 27 C.J.S., Divorce, Sec. 329 p. 1283.
(Hn 1) The issues are: (1) whether in a divorce action brought in Mississippi by the husband, who established the necessary legal residence, and on personal service of process on the defendant wife, the trial court should have sustained defendant's motion to dismiss for lack of jurisdiction, on the ground that there was a then pending divorce action by the husband in Pennsylvania based on a different ground of divorce, and (2) whether a temporary custody order of a Pennsylvania court precluded the Mississippi court from awarding custody of their minor child to the husband.
On February 9, 1957 Ralph Cox, Jr., the appellee, filed a bill for divorce in the Chancery Court, Second Judicial District of Bolivar County, Mississippi, against his wife, appellant, Lorraine M. Cox. He also prayed for custody of their five year old daughter, who for over a year had been living with her father in Bolivar County, Mississippi. The defendant was personally served with process in Bolivar County. The ground for divorce was adultery. On the merits of the proceedings, the defendant filed no answer and offered no witnesses. The undisputed testimony reflected the correctness of the charges in the bill. The final decree of the Chancery Court of May 29, 1957 so adjudicated, awarded to complainant a divorce and permanent custody of their minor daughter, Maureen Cox. So there is no factual issue on the merits. And the decree was based upon personal service of process upon the defendant.
On this appeal, appellant's contention is that the trial court erred in overruling her motion to dismiss the action for lack of jurisdiction. That motion recited that defendant was appearing solely for the purpose of raising the jurisdictional issue. It was contended that the chancery court had no jurisdiction because of a pending divorce action brought by appellee several years prior thereto in the Court of Common Pleas of Allegheny County, Pennsylvania. The motion did not have attached to it authenticated copies of the records in that proceeding, but referred to such records which were incorporated in the record in Cause No. 40,771 of this Court, Cox v. Cox, 102 So.2d 799, decided May 19, 1958. Appellee contends that the motion to dismiss is insufficient on its face, because it does not have attached to it as exhibits authenticated copies of the Pennsylvania proceedings. Appellant says, in effect, that the motion to dismiss incorporated the same by reference to the earlier lawsuit between the parties, which originated in the Chancery Court of Coahoma County; and because counsel for both sides had an oral agreement that the Pennsylvania proceedings as set forth in the other record should be considered on this motion to dismiss.
We do not need to decide this pleading issue concerning sufficiency of the motion to dismiss, since we have concluded that the facts which are established authorized the chancery court to refuse to dismiss or stay suit because of the then pendency of the Pennsylvania proceedings.
On October 31, 1955 Ralph Cox, Jr. moved to Clarksdale, Mississippi, and five days later brought suit in the Chancery Court of Coahoma County for the sole purpose of obtaining an adjudication for the custody of his child. Lorraine Cox in that action filed a motion to dismiss for lack of jurisdiction, asserting the court had no jurisdiction because the suit was solely one for child custody, and because of a pending divorce action in Pennsylvania. The Chancery Court of Coahoma County overruled that motion, and awarded custody of Maureen to her father. On appeal, in 102 So.2d 799, we held that in Mississippi the custody of a child can only be determined in suits for divorce or separate maintenance, or on habeas corpus; and that no remedy exists to adjudicate custody alone. That decision followed a well-established rule in Mississippi. That was all which was necessary to be decided in reversing the chancery court and rendering judgment for Mrs. Cox in that child custody case. However, the opinion additionally noted that there was a pending divorce proceeding in Pennsylvania, in which the parties had agreed upon a consent order giving temporary custody of the child to Mrs. Cox; and it was said that "even under the rule of comity", the Chancery Court of Coahoma County should have declined jurisdiction. This latter statement as to comity was not necessary to that decision, and for that as well as other reasons is not controlling in this case.
Moreover, the circumstances in the instant case are entirely different from those in the original child custody case. There Ralph Cox, Jr. within five days after he had moved to Mississippi filed his bill for custody. Here he has filed a suit for divorce, and supplementary to it for custody of Maureen, after having first established, as the trial court found, that he had been a resident citizen of Bolivar County for more than one year preceding the filing of his bill for divorce. Personal process was had upon the defendant.
Moreover, the Pennsylvania divorce suit had been pending since November 1953, with no final decree having been rendered at the time of the hearing in this case in May, 1957. It appears that Ralph Cox, Jr., was denied a divorce by the Pennsylvania court on January 28, 1958, after the final decree in this cause. See Cox v. Cox, 144 A.2d 458 (Pa. 1958). Furthermore, the grounds for divorce in that action, "indignities and cruel and barbarous treatment," were different from the basis of this divorce action, adultery. The events pertinent to the charge of adultery occurred subsequent to the filing of the suit in Pennsylvania. See Commonwealth of Pa. ex rel. Cox v. Cox, 137 A.2d 779 (Pa. 1958).
In brief, at the time of the trial of the divorce action brought by appellee in the Chancery Court of Bolivar County, there was a pending but undecided divorce proceeding in Pennsylvania which had been in process of litigation for about 3 1/2 years. Appellee established an adequate legal residence in Mississippi, bought a home here, and he and his parents were caring for his daughter. The trial court was amply warranted, considering all of these circumstances, in refusing to apply the doctrine of comity. (Hn 2) It is well-established that the pendency of an action for divorce in another state is not a bar, nor a cause for a stay of proceedings, in a similar action between the same parties in the state, where jurisdiction of defendant is obtained by personal service of process. 27 C.J.S., Divorce, Sec. 99; 1 C.J.S., Abatement and Revival, Sec. 75; 1 Am. Jur., Abatement and Revival, Sec. 39. (Hn 3) A stay is not a matter of right, but rests within the sound discretion of the court. 1 C.J.S., Actions, Sec. 133(c); see Streckfus Steamers v. Kiersky, 174 Miss. 125, 141, 163 So. 830 (1935).
(Hn 4) Moreover, even if the divorce had been denied by the Pennsylvania court prior to the decree of the Chancery Court of Coahoma County, Mississippi, it was on an entirely different ground for divorce and involved different facts. Those pertinent to the Mississippi suit occurred subsequent to the filing of the Pennsylvania action. A judgment is not res judicata where the issues in the two suits are entirely different. 27 C.J.S., Divorce, Sec. 326; 17 Am. Jur., Divorce, Sec. 544.
(Hn 5) The order of the Pennsylvania court for temporary custody of the child was subject to change, and, since appellee and his daughter established legal residences in Mississippi, this Court had jurisdiction in May, 1957 to determine the right to her custody. (Hn 6) A judgment has no constitutional claim to a more conclusive or final effect in the state of the forum than it has in the state where rendered; (Hn 7) and, therefore, the award of temporary custody by Pennsylvania has no constitutional claim under the full faith and credit clause of the Federal Constitution to final and conclusive effect in the state of the forum. Latham v. Latham, 223 Miss. 263, 272-273, 78 So.2d 147 (1955).
Affirmed.
Roberds, P.J., and Hall, Arrington, and Gillespie, JJ., concur.