Opinion
December 13, 1948.
1. Parent and child — custody — jurisdiction.
The chancery court whose decree fixed the custody of children has exclusive jurisdiction to decree modification based on changed conditions.
2. Divorce — custody of child — original decree, effect of.
A decree of the chancery court granting divorce awarded the custody of the two children to the wife and mother. The husband later obtained possession of them and took them to another county, and refusing to surrender them to their mother, she brought an action in habeas corpus in the county court, which was transferred to the chancery court of the latter county, where the court awarded custody to the father, without giving recognition to or following original decree. Held: error, since the authority to modify the award was vested solely in the court which made the initial decree.
Headnotes as revised by Alexander, J.
APPEAL from the chancery court of Jones County, ROY P. NOBLE, Chancellor.
Collins Collins, for appellant.
This case according to our view comes squarely within the purview of the case of Herndon et ux v. Bonner, 97 Miss. 328, 52 So. 513. In that case, T.B. Bonner, who had been appointed the guardian of Inel Bonner and Eugene Bonner, both of their person and their estate, brought the suit against J.R. Herndon and wife, the grandparents of the two children. This is the statement in brief as this court gave it: "This is a habeas corpus proceeding by the appellee, T.B. Bonner, guardian for Inel Bonner, a girl 12 years of age, and Eugene Bonner, a boy 10 years of age, their uncle, against the grandfather and grandmother of said minors, J.R. Herndon and wife, appellants, for their custody. The writ was made returnable before the circuit judge, who rendered judgment awarding their custody to the guardian, T.B. Bonner, from which this appeal is prosecuted by the grandparents."
"The petition for the writ alleges that the petitioner, T.B. Bonner, had been legally appointed guardian by the chancery court of Jones County of the persons and estates of these minors, with the right to the custody of both; that their mother and father were dead, and he permitted them to spend the summer of 1909 with their grandparents at their home in Sandersville, Jones County (Bonner's home being at Laurel, and in said county); that, when the time approached for their return to his home to enter school, Mr. and Mrs. Herndon refused to give them up, detaining them with force, violence, and threats. In their answer the Herndons admit the substantial allegations of the petition, and to justify their detention of the children charge that Bonner is unfit to have their custody, care, and education, and that they are setting out the reasons therefor. On the trial the only testimony admitted by the judge was the decrees of the chancery court of Jones county appointing Bonner guardian for the minors, in which it is recited he is to be guardian of their persons and estates. Respondents offered to introduce testimony to sustain their answer, which the court declined to permit."
These facts are so similar that they could almost be substituted one for the other. Listen to what the court said "Anderson, J. (after stating the facts as above.) The right to the custody of minors having a guardian is fixed by statute in this state (section 2409, Code 1906), which provides that `the guardian of a minor who has no parent shall be entitled to the custody of the minor as well as of his estate, or the court or the chancellor may appoint one person to be the guardian of the person, and another to be the guardian of the estate of the minor.' The decree of the chancery court appointing Bonner expressly provides that he is to be guardian of the person and estates of his wards. The circuit judge had no power to override the statute and decree of the court. This decree under the statute fixed the right to the custody of the wards in the guardian, until vacated by the court making it on a proper proceeding for that purpose, which is amply provided for by law. They are the wards of the chancery court, which alone has the power to determine who shall have the custody of their persons and estates.
"It is insisted that Foster v. Alston, 6 How. 406, is authority to the contrary. We hold that it is not. The question there was whether the testamentary guardian in Tennessee (the uncle) was entitled to the custody of the wards, as against their mother in Mississippi, with whom they were living, and thoroughly capable of having their custody, care, and education. The court refused to recognize the legal right of the Tennessee guardian, under the laws of that state, as against the right of the mother and the best interest of the wards in his state; Judge Sharkey dissenting, in able opinion. The question here is whether the court in a habeas corpus proceeding will overturn a statute of this state by awarding the custody of these minors to one person when the law says another shall have it, which we answer in the negative. Affirmed."
It would be superfluous for me to cite and argue the complete similarity as I view it from the facts in the two cases, the Bonner case, supra, and the case at bar. The custody of these children was fixed by a court of competent jurisdiction in this State and it was never appealed or reversed, which is admitted, and is the law of the case. The same orders were enterd on several occasions in the Juvenile Court of Alabama, which have never been appealed or reversed. Under this authority and right it is our contention that the law of the case was fixed and so in the proceedings appellant objected to any testimony with references to the fitness or unfitness of the parties to have the custody of the children, because that question was already a settled question and was res judicata. In the Bonner case it will be noted that the only testimony that the court considered was the order of the court appointing Bonner as guardian of the person and estate of the minors, his fitness or unfitness was not allowed to be gone into in the habeas corpus case. The order appointing him guardian of the estate and person of these minors was not any more binding and efficacious than the orders in this case of the chancery court and the Juvenile Court giving the custody of these children to the mother. She was the legal guardian under the laws of Mississippi, and she was the legal custodian under the order of the chancery court of George County, which has never been reversed or modified.
We submit that this habeas corpus court under the facts in this case had no right to change the permanent custody of these children, since the court found that the mother, Mrs. Hinman, was competent and a good woman and qualified to take care of the children. The judgment of the habeas corpus court in this case was unwarranted and was without authority as we respectfully submit.
In the case of Yarbrough v. Dunnam et al, 130 Miss. 669, 94 So. 892, this court held that a habeas corpus court did not retain jurisdiction of the children and could not provide for anything with reference to the rights of the parents in visiting or seeing the children.
Now since this is the rule with reference to a judgment in habeas corpus proceedings, the appellee in this case has the exclusive custody of these children and with no remedy of the mother to see them or have any communication with them at all. It also overturns and sets aside the decree of the chancery court of George County, Mississippi, and also the judgment of the Juvenile courts of Alabama, which have never been reversed or appealed from by the appellee herein. And this is true notwithstanding the facts that the court in his written opinion adjudicates that Mrs. Hinman is a proper and fit person to take care and have the custody of the said children. So we respectfully submit from a humanitarian standpoint if no other that the judgment is unconscionable. The mother who the court finds is a good woman and loves the children and has cared for them several years and sent them to school, and without any showing that the father is superior in qualifications, and in spite of the fact that these are girls, is completely shut off and the court takes them away from her and leaves her with no remedy at all.
L.B. Melvin, for appellee.
Appellant cites the case of Herndon, et ux v. Bonner, 97 Miss. 328, 52 So. 513, and relies upon the Herndon v. Bonner case, supra, to substantiate her arguments in this case.
Appellee is at a total loss to see where and how and in what way the Herndon v. Bonner case, supra, is in any way parallel to the case now before the court or is an authority that should be considered by this court in this case.
In the Herndon v. Bonner case, Bonner had previously been appointed by the chancery court as guardian of Inell Bonner and Eugene Bonner, both of their person and estate. The guardianship was then pending in the chancery court, there never having been a final discharge of the guardian and the guardian being an officer of the court and responsible to the court for the welfare of the person and the estate of his wards. Under a statement of facts the court found to then exist, the court could not hold otherwise than to hold that Bonner was entitled to the custody of the children involved and appellee has no argument with the correctness of this decision.
Appellee's contention is that the case before the court at this time is in no way similar to the Herndon v. Bonner case, because in the case, before the court at this time, there has not been an adjudication and appointment of a legal guardian of the minor children involved in this suit.
Appellee understands the law to be that the father and mother are equal guardians of their minor children and the fact that the chancery court of George County, Mississippi, gave the mother custody of the children, in no way appointed her the legal guardian of their personal life or of their estate. This being true, this case is no different from any other case wherein the father and mother have been divorced and the custody of minor children given by the chancery court to one of the parents for custody only, which decree can always be changed on proper showing of changed conditions and, therefore, the decision of the chancery court of George County, Mississippi, may be changed or modified at any time either party could show that there a changed condition from the condition existing at the time and date of the original decree.
If appellee understands the contention of the appellant in citing the case of Harbrough v. Dunnam, et al., 130 Miss. 669, 94 So. 892, the contention is that a habeas corpus does not retain jurisdiction of the children and could not enter into any decree as to their custody or care. It seems to appellee that this contention of the appellant is completely answered in the case of Legget v. Leggett, 32 So.2d 189 at 190.
It is the contention of the appellee that under the holdings of the case of: Leggett v. Leggett, 32 So.2d 189 at 190; Gray v. Gray, 83 So. 726; Yarbrough v. Dunnam, 94 So. 892; Haynie v. Hudgins, 85 So. 99 at 104; Ex parte Newsom et al., 58 So. 539, that this court should now affirm the decision of the trial court.
A writ of habeas corpus was sought by appellant in a petition before the chancellor of Jones County, and, upon hearing, custody of his two children was awarded to appellee. Appellant assigns for error that in view of the prior award of such custody to her by the Chancery Court of George County, the Chancellor was without jurisdiction to alter such decree.
The parties are the parents of these children. They were delivered in 1939 by a decree of the chancery court of George County, which awarded custody to the wife. She took the children to Alabama, in which state the father made two unsuccessful attempts to procure their possession by court order. In 1947, the mother agreed to allow the father to take the children to be placed in school in Alabama. The father, exceeding this permission, brought them to Jones County, Mississippi. The mother, appellant here, sued on a writ of habeas corpus in the county court. The proceedings were transferred to the chancery court of that county.
Upon the hearing evidence touching the welfare of the children was introduced over objection by the mother, who stood upon the decree of the chancery court of George County. The trial judge found that the mother was a fit person to retain custody, but refused to give controlling effect to the decree of the George County Chancery Court. We find this to be error.
Regardless of the right of the mother to invoke the former decree as a basis for her application for writ of habeas corpus, (Hn 1) the latter remedy was not available to appellee as a device to amend the existing decree. Herndon v. Bonner, 97 Miss. 328, 52 So. 513. See also Cole v. Cole, 194 Miss. 292, 12 So.2d 425. It is true that in Leggett v. Leggett, Miss., 32 So.2d 189, 191, we held that an original proceeding in the form of habeas corpus would be adjudicated in the light of the objects sought and the jurisdiction of the court, and treated as an action cognizable by the chancery court as such and that it retained exclusive jurisdiction in the matter of custody. We stated "It would provoke endless confusion to permit one, or several, other courts to undertake to adjudicate the rights of the parties and best interest of his minor, at the instance of the father, in this state of affairs. . . ."
The proceeding here differs from that in such cases as Yarbrough v. Dunnam, 130 Miss. 669, 94 So. 892, where the proceeding was before the judge and was in form and substance strictly a habeas corpus hearing. Our conclusion is not out of accord with Haynie v. Hudgins, 122 Miss. 838, 85 So. 99. See 27 C.J.S., Divorce, Sec. 303, page 1162; 17 Am. Jur., Divorce Separation, Sec. 687, p. 523.
(Hn 2) The decree of the George County Chancery Court was a sufficient basis for awarding custody in the habeas corpus suit, and due recognition of the former decree would require that its provisions be protected against modification save by the court which made the initial award.
Reversed, and decree here for appellant.