Summary
In Ex parte Fletcher, 225 Ala. 139, 141, 142 So. 30, 31, it is said: "A court of equity in which jurisdiction of the person of the infant is acquired has exclusive right to pursue an exercise of such jurisdiction not affected by the subsequent residential status of the infant or its custodian.
Summary of this case from Vaughan v. VaughanOpinion
4 Div. 624.
May 12, 1932. Rehearing Denied June 9, 1932.
Appeal from the Circuit Court, Covington County; Hon. Emmet S. Thigpen, Judge.
A. Whaley, of Andalusia, for petitioner.
On the case made by the bill and petition in the lower court, it was petitioner's right to have the minors returned to their home and to his custody as their legal guardian; and mandamus lies to review the ruling of the trial court. Code 1923, §§ 8094, 8096, 8231, 3188; Const. 1901, §§ 1, 6, 13; Const. U.S. Amendments, 5, 14; Daniel v. Hill, 52 Ala. 430; Johnson v. Copeland's Adm'r, 35 Ala. 521; Ex parte Bibb, 44 Ala. 140; Ex parte Tower Mfg. Co., 103 Ala. 415, 15 So. 836; Ex parte Edwards, 183 Ala. 659, 62 So. 775; Ex parte Waters, 180 Ala. 523, 61 So. 904; Hughes v. Outlaw, 197 Ala. 453, 73 So. 16, Ann. Cas. 1918C, 872; Bryce v. Burke, 172 Ala. 219, 55 So. 635; 26 Cyc. 401; 38 C. J. 835, 615; Fountain v. State, 211 Ala. 586, 100 So. 892; Home Guano Co. v. State, 193 Ala. 548, 69 So. 419; Ex parte Dowe, 54 Ala. 258; Wilson v. Duncan, 114 Ala. 659, 21 So. 1017; Thompson v. Lea, 28 Ala. 453; Ex parte Crandee, 48 Ala. 386; Santa Fe County Com'rs v. New Mexico, 215 U.S. 296, 30 S.Ct. 111, 54 L.Ed. 202; State v. Williams, 69 Ala. 311; Commissioners' Court of Tallapoosa v. Tarver, 21 Ala. 661; Dunn v. Christian, 202 Ala. 486, 80 So. 870; Ex parte Selma G. R. Co., 46 Ala. 230.
Powell, Albritton Albritton, of Andalusia, for respondent.
To entitle one to writ of mandamus he must show a clear legal right. Ex parte Jackson, 212 Ala. 496, 103 So. 558; Cloe v. State, 209 Ala. 544, 96 So. 704. It will not lie to correct error or reverse judicial action. Ex parte Dickens, 162 Ala. 272, 50 So. 218. Nor to annul an interlocutory decree. Ex parte Hurt, 157 Ala. 368, 47 So. 264. It does not lie to review or control the exercise of judicial discretion. Foshee v. State, 210 Ala. 155, 97 So. 565; Ex parte State ex rel., 208 Ala. 28, 93 So. 820; Ex parte Scudder-Gale Grocery Co., 120 Ala. 434, 25 So. 44; Ex parte Powers, 224 Ala. 78, 139 So. 249. In proceedings regarding the custody and care of infants, the paramount consideration is the well-being of the infant. Murphree v. Hanson, 197 Ala. 246, 72 So. 437; Pearce v. Pearce, 136 Ala. 188, 33 So. 883. The appointment of a guardian by the probate court is not conclusive or binding on the court of equity in matters relating to the custody of the person of the ward. Jurisdiction of the circuit courts, in chancery matters, is coextensive with the state, and custody of minors may be awarded to any one residing in the state. Code 1923, § 6495; Murphree v. Hanson, supra.
The parents of two girls (6 and 11 years of age) both died, the mother some 3 years before the father. He owned a comfortable home, well furnished, in Andalusia, and, with a housekeeper engaged by him, maintained the home until his sudden death. From the funeral the children went with their maternal aunt to her home with her husband's mother, for which no blame is charged. One of them needed and received medical attention. Their maternal grandparents, a respected Baptist minister and his wife, resided in Mobile and attended the funeral and remained several days. There was negotiation as to their custody and financial affairs which continued for several days not resulting in agreement, and until December 2d, when petitioner was appointed their guardian by the probate court at Andalusia. On the next day about noon, Dr. and Mrs. Preston, the grandparents, left Andalusia for their home, taking both the children, where they still are detained.
On the same day, and as soon as the guardian was informed of their departure, a bill in equity was filed by him to restore their custody to him as their guardian for residence in their own home. Petitioner then presented a petition to the court to require respondents to return the children to Andalusia and to their home under the supervision of petitioner, pending a hearing of the cause. Upon a denial of such petition, complainant seeks to review the ruling by mandamus. There is no other adequate method of review, and we have entertained a petition for mandamus to review when petitioner claims the right of immediate relief pending a suit in equity, and there is no other appropriate method of reviewing the action of the court in respect to such claim. Ex parte Green, 221 Ala. 298, 129 So. 72, where the cases are cited; also in Ex parte Green, 221 Ala. 415, 129 So. 69.
By section 8096, Code, guardianship carries no right to the custody of infants during the life of the father; or if the ward is a girl, or a boy under 14, during the life of the mother. Otherwise the general rule is that guardianship by an individual (not a corporation) carries with it the custody of the ward's person in priority to relatives and friends, unless her interest will be better otherwise cared for. 1 Schouler on Domestic Relations (6th Ed.) § 873; 28 Corpus Juris 1109, 1110; Desribes v. Wilmer, 69 Ala. 25, 31, 44 Am. Rep. 501. But always the controlling consideration is the best interest of the child while still recognizing a priority of right where the law has placed it. Payne v. Payne, 218 Ala. 330, 118 So. 575.
The domicile of the father at the time of his death is the domicile of the infant child. If a guardian has been there appointed, no one, not even its mother, though living, can change such domicile without the consent of the guardian, and the court, Moses v. Faber, 81 Ala. 445, 449, 1 So. 587; Desribes v. Wilmer, 69 Ala. 25, 31, 44 Am. Rep. 501; Carlisle v. Tuttle, 30 Ala. 613; Daniel v. Hill, 52 Ala. 430; Johnson v. Copeland, 35 Ala. 521, and in compliance with the statute, section 8231, Code; Desribes v. Wilmer, supra; Daniel v. Hill, supra; Johnson v. Copeland, supra; Moses v. Faber, supra; Randall v. Wadsworth, 130 Ala. 633, 31 So. 555. To the person of the ward, in the absence of parents, the guardian, who is not a corporation, is placed in loco parentis. Desribes v. Wilmer, supra; Murphree v. Hanson, 197 Ala. 246, 72 So. 437.
A court of equity in which jurisdiction of the person of the infant is acquired has exclusive right to pursue an exercise of such jurisdiction not affected by the subsequent residential status of the infant or its custodian. Lassiter v. Wilson, 207 Ala. 669, 93 So. 598; Burns v. Shapley, 16 Ala. App. 297, 77 So. 447.
While the evidence on the hearing was given orally in open court, the result is not dependent upon any conflict in it nor conflicting inferences, but depends upon legal conclusions. Murphree v. Hanson, 197 Ala. 246, 72 So. 437.
The children own their home in Andalusia, completely furnished, where they were born, and have spent their lives, attended school, made associates and attachments, and at the domicile of their father, and in the jurisdiction of their guardianship. Their wearing apparel and toys are all still in the home, as are also their beds and bedding, specially prepared for them. They also have an automobile, garage, and all necessary equipment for their accommodation. They have never lived in Mobile, rarely visited there, and were not familiar with their new environment before being taken there by respondents.
The evidence shows without dispute that their paternal grandmother and their father's housekeeper provided by him for them are in their home with all their belongings waiting and anxious for their return, and provide an environment free from any kind of objection. There is no evidence or claim that any person, related through their mother or father, seek any financial benefits from their custody. All are people of the most excellent character, and none of them seem to have any interest but the welfare of the children, but view such welfare from a different angle.
The court has a wide discretion in directing the temporary custody of minors pending a suit for their custody, to be exercised for their well being. Ex parte Rickerson, 203 Ala. 305, 82 So. 769. But we cannot agree with the conclusion expressed in the decree that the burden is upon complainant to show some reason why the interest of the children would be prejudiced by a failure to grant the motion. But as we view the situation, on account of the legal principles which we have discussed, we think the burden is on respondents to show that the welfare of the children would be prejudiced by restoring them to their home and domicile and childhood associations and the care of their guardian standing in loco parentis, since they took them away from such conditions following a disagreement among the family connections respecting their affairs. No such showing was made, but the contrary is conclusively shown. We think they should be returned to their home pending this hearing, and to that extent and for that purpose the writ of mandamus is ordered.
Writ awarded.
ANDERSON, C, J., and GARDNER and BOULDIN, JJ., concur.