Opinion
No. 40180.
May 28, 1956.
1. Judgments — habeas corpus — foreign judgment — entitled to full faith and credit.
In divorced wife's habeas corpus proceeding against divorced husband in Mississippi to gain custody of child of marriage, judgment in habeas corpus proceeding instituted by husband in Florida against wife for custody of child was entitled to full faith and credit and husband was bound by terms thereof.
2. Judgments — contention that process in divorce suit was void because served before bill filed — collateral attack on judgment.
In divorce wife's habeas corpus proceeding against divorced husband in Mississippi to gain custody of child wherein it appeared that while husband was in State of Florida for purpose of filing habeas corpus suit against wife for custody of child, divorced husband was served with process in wife's divorce and child custody action, divorced husband's contention that process in divorce suit was void because it was served before bill had been filed was a "collateral attack" on judgment.
3. Collateral attack — jurisdictional facts conclusively presumed to have existed — process.
On collateral attack, unless contrary affirmatively appears from record, all jurisdictional facts are conclusively presumed to have existed, including proper service, whether there are recitals in the record to show them or not.
4. Judgments — direct attack — competent to show no service of process.
In a direct attack upon a decree, it is competent to show that there was no service of process.
5. Decrees — Florida divorce decree — service of process could not be held void on collateral attack.
Where Florida decree in wife's divorce and child custody proceeding recited that personal service had been obtained and that court had jurisdiction over the subject matter and the parties, and on husband's collateral attack one certificate of clerk of Florida court, with reference to divorce and child custody action, showed that filing of suit had preceded service of process, even though another certificate of clerk showed that suit was filed subsequent to service of process, service of process could not be held void on collateral attack.
6. Process — immunity from — claiming privilege — delay — waiver.
Where resident of State of Mississippi was served with process in divorce and child custody action while he was in Florida prosecuting habeas corpus proceeding against wife to gain custody of child of marriage but he did not appear in divorce action and did not there assert privilege of immunity before or during trial, he waived such immunity, and could not successfully raise issue in collateral attack on divorce decree.
7. Divorce — Florida decree — conclusive of facts and rights of parties at time rendered — not subject to relitigation in subsequent habeas corpus proceeding.
Where, at time wife's divorce action was tried in Florida, husband had or should have had knowledge of care which child of marriage was receiving in wife's hands, decree rendered therein was conclusive of facts and rights of parties at time it was rendered, and such facts and rights could not be relitigated in former wife's subsequent habeas corpus proceeding against former husband to gain custody of child pursuant to decree.
8. Child custody — decree — res judicata — conclusive of facts and rights of parties — until changed.
A decree or judgment awarding custody of a child, whether on divorce, separate maintenance, or habeas corpus, is res judicata and conclusive of the facts, and the rights of the parties, existing at the time it was rendered, and court will not modify or change the judgment or decree touching custody, so long as the facts remain substantially the same.
9. Divorce — decree — subsequent remarriage by divorced wife — not a change of conditions — sufficient to warrant loss of child's custody.
Where only change, according to record, was the subsequent marriage by divorced wife, this alone was not a change of conditions sufficient to warrant her loss of custody of child of marriage.
Headnotes as approved by Lee, J.
ON SUGGESTION OF ERRORJune 28, 1956 88 So.2d 558
10. Judgments — collateral attack — rule that all jurisdictional facts are conclusively presumed to have existed applies to domestic judgments — not foreign judgments.
Contention that the rule that on a collateral attack, unless the contrary affirmatively appears from the record, all jurisdictional facts are conclusively presumed to have existed, whether there are recitals in the record to show them or not, applies to domestic judgments and not to foreign judgments, though abstractly correct did not change results of decision in case.
11. Judgments — collateral attack — mere irregularity in process.
Where husband was personally served with process in a Florida divorce action, no mere irregularity in the service, unless so radical as to deprive it of all citatory effect, could be set up against the judgment when brought into question in this State.
12. Appeal — successive appeals to enable party to supply deficiencies in proof — not permitted.
Successive appeals may not be allowed to enable a party to supply deficiencies in the proof in prior trials.
13. Appeal — child custody — foreign judgment — collateral attack — process — burden of proving lack of — Supreme Court not to remand case to enable party to supply proof.
In divorced wife's proceeding to gain custody of child of marriage, where husband alleged that in Florida divorce action, he was not served with process, such allegations constituted affirmative matter as to which the husband had the burden of proof, and where husband failed to offer any proof to sustain such allegations though he had ample opportunity to do so, the Supreme Court would not remand the case to enable the husband to supply such proof.
Headnotes as revised by Gillespie, J.
APPEAL from the Circuit Court of Tallahatchie County; CURTIS M. SWANGO, JR., Judge.
Breland Whitten, Sumner; Barnett, Jones Montgomery, Jackson, for appellant.
I. In the Court below, the evidence was wholly insufficient as to a change of circumstances such as would warrant the Court below in upsetting the decree of the Florida Court and changing the custody of the child from the mother to the father. Cole v. Cole, 194 Miss. 292, 12 So.2d 425; Hinman v. Craft, 204 Miss. 568, 37 So.2d 770; Savell v. Savell (Miss.), 49 So.2d 726; Cassell v. Cassell, 211 Miss. 841, 52 So.2d 918; Campbell v. Lovgren, 175 Miss. 4, 166 So. 365; Boswell v. Pope, 213 Miss. 31, 56 So.2d 1; Amis on Divorce and Separation in Miss., p. 308.
II. The orders, judgments, and decrees of the Florida Court are res judicata and entitled to full faith and credit in the Courts of Mississippi. Campbell v. Lovgren, supra; Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 321 U.S. 801, 88 L.Ed. 1049, 1088, 64 S.Ct. 208, 483, 150 A.L.R. 413, 418; Burns v. Shapley (Ala.), 77 So. 447; Williams v. Williams, 167 Miss. 115, 148 So. 358, 88 A.L.R. 197; 31 Am. Jur., Sec. 535 p. 146; 67 C.J.S., Sec. 13 p. 686.
III. The mother should have custody of a minor female child unless unfit.
A. There is no evidence that the mother here is unfit to have custody of her girl child.
B. The judgment of the Lower Court is persuasive only on this appeal.
Collation of authorities: Boswell v. Pope, supra; Bland v. Stoudemire, 219 Miss. 526, 69 So.2d 225; Eggleston v. Landrum, 210 Miss. 645, 50 So.2d 364; Cassell v. Cassell, supra; Amis on Divorce Separation in Miss., p. 308.
IV. Aaron cannot invoke powers of Mississippi courts while in contempt of decree of Florida court issued at the instance of Aaron. Hinman v. Craft, supra; Leggett v. Leggett, 202 Miss. 435, 32 So.2d 189; Mahaffey v. Mahaffey, 176 Miss. 733, 170 So. 289; Latham v. Latham, 223 Miss. 263, 78 So.2d 147; Williams v. Williams, supra.
Carlton Henderson, Sumner, for appellee.
I. The judgment of the Florida court in habeas corpus on May 6, 1955, and its decree in divorce on July 15, 1955, are entitled to comity and full faith and credit, if that court had jurisdiction. Campbell v. Lovgren, 175 Miss. 4, 166 So. 365; Haynie v. Hudgins, 122 Miss. 838, 85 So. 99; Hall v. Hall, 199 Miss. 478, 24 So.2d 347; Williams v. State of North Carolina, 325 U.S. 226, 89 L.Ed. 1577, 65 S.Ct. 1092, 157 A.L.R. 1366; Woodville v. Pizzati, 119 Miss. 442, 81 So. 127; Steele v. Steele, 152 Miss. 365, 118 So. 721; McAdams v. McFerron, 180 Miss. 644, 178 So. 333.
II. The decree of the Florida court in divorce on July 15, 1955, is void for lack of jurisdiction for three separate reasons.
A. The process alleged to have been served was issued before complaint was filed. Speight v. Horne, 101 Fla. 109, 133 So. 577; Williams v. New York Life Ins. Co., 132 Miss. 345, 96 So. 97; Meridian National Bank v. Hoyt Bros. Co., 74 Miss. 221, 21 So. 12; Sec. 63.04, Florida Statutes; Florida Equity Rules Nos. 4, 5; Rules 1.2, 1.3, Florida Rules Civil Procedure.
B. There was no actual service of process upon Aaron, the appellee, herein.
C. Aaron, the defendant therein, was immune from service of process. Rorick v. Chancey, 130 Fla. 442, 178 So. 112; State ex rel. Cox v. Adams, 148 Fla. 426, 4 So.2d 457.
III. The Mississippi courts have full power and authority to control the custody of this child. Haynie v. Hudgins, supra; Hinman v. Craft, 204 Miss. 568, 37 So.2d 770; Leggett v. Leggett, 202 Miss. 435, 32 So.2d 189; Latham v. Latham, 223 Miss. 263, 78 So.2d 147.
IV. This habeas corpus proceeding in Mississippi may be used to test facts, circumstances, and conduct subsequent to the judgment of May 6, 1955. Haynie v. Hudgins, supra.
V. Changes of circumstances occurring since the Florida judgment of May 6, 1955, authorize a new custodial determination by the Mississippi court, in which determination the welfare of the child will be a prime consideration. Watts v. Smylie, 116 Miss. 12, 76 So. 684; Duncan v. Duncan, 119 Miss. 271, 80 So. 697; Haynie v. Hudgins, supra; Williams v. Williams, 127 Miss. 627, 90 So. 330; Campbell v. Campbell, 159 Miss. 708, 132 So. 324; Campbell v. Lovgren, supra; Evans v. Evans, 195 Miss. 320, 15 So.2d 698; White v. Brocato (Miss.), 35 So.2d 455; Savell v. Savell (Miss.), 49 So.2d 726; Cassell v. Cassell, 211 Miss. 841, 52 So.2d 918; Boswell v. Pope, 213 Miss. 31, 56 So.2d 1; Bland v. Stoudemire, 219 Miss. 526, 69 So.2d 225; Latham v. Latham, supra.
VI. Drastic changes of circumstances — including the total unfitness of the appellant and a changed mental and physical condition of the child — were shown by the evidence in the Court below. Latham v. Latham, supra.
This is an appeal by Mrs. Thelma Aaron Honeywell from a judgment of the Circuit Court of Tallahatchie County, which denied to her, in a habeas corpus proceeding, the custody of her eight year old daughter, Pamela Gail Aaron, and awarded the custody to defendant, Ira Aaron, the father of the child.
The parties had been married in Conyers, Georgia, on June 9, 1941. They moved to Webb, Mississippi, in 1953, where they were living on January 10, 1955, when the appellant left the domicile with her daughter and went to Tallahassie, Florida.
The appellee went to Florida, and on March 5, 1955, filed a petition in habeas corpus against his wife, in the Circuit Court of Leon County, to obtain the custody of Pamela. The cause was heard, and on May 6, 1955, the court entered a judgment, awarding to the father custody of the child from June 15th to August 15th of each year, and to the mother from August 15th to June 15th of each year. There was no appeal from this judgment.
While the appellee was in Florida for the purpose of prosecuting the habeas corpus proceeding, on May 5, 1955, he was served with process in a suit, in the same court, by his wife for a divorce, custody and support of the child, attorneys fees, etc., but he neither answered nor contested this suit. On July 15th thereafter that court entered a final judgment, awarding a divorce to the wife, custody of the child to the parties for the same periods as were provided in the habeas corpus judgment, together with reasonable rights of visitation, and a weekly amount of $12.50 against the father for the support of the child. Aaron did not appeal from that judgment.
In the meantime, on June 15th, pursuant to the terms of the habeas corpus judgment, Aaron took custody of the child and brought her to his home in Mississippi. Two months later, on August 15th, at the expiration of his period of custody, he refused to return the little girl to her mother, as he was required to do by the Florida judgment. It was then that Mrs. Aaron brought the proceedings in Mississippi to obtain custody.
(Hn 1) The judgment of May 6th was entered in a suit which the appellee himself had instituted; and obviously he was bound by the terms thereof. The trial court properly found that the judgment was entitled to full faith and credit. See Williams v. North Carolina, 325 U.S. 226, 89 L.Ed. 1577.
The appellee contended in his answer (1) that the process in the suit, filed May 5th, was void because it was served before the bill of complaint had been filed; and (2) that he was immune from process because he was a nonresident of Florida and was in that state solely to prosecute the habeas corpus suit.
The judgment recited that personal service had been obtained and that the court had jurisdiction over the subject matter and the parties. In Brotherhood of Railway Trainmen v. Agnew, 170 Miss. 604, 155 So. 205, it was held that it is the duty of a court, before proceeding, to determine whether it has jurisdiction of the subject matter and the parties, and to examine the process and returns, and determine if the defendant has had notice as required by law.
(Hn 2) The appellee's contention here constitutes a collateral attack on that judgment. (Hn 3) On such an attack, unless the contrary affirmatively appears from the record, all jurisdictional facts are conclusively presumed to have existed, including the proper service, whether there are recitals in the record to show them or not. Cason v. Cason, 31 Miss. 578; Cannon v. Cooper, 39 Miss. 784; Allen v. Dicken, 63 Miss. 91; Kelly v. Harrison, 69 Miss. 856, 12 So. 261; Ames v. Williams, 72 Miss. 760, 17 So. 762; Gillespie v. Hauenstein, 72 Miss. 838, 17 So. 602; Hester v. Hester, 103 Miss. 13, 60 So. 6; Cotton v. Harlan, 124 Miss. 691, 87 So. 152; Federal Reserve Bank of St. Louis v. Wall, 138 Miss. 204, 103 So. 5; Whitley v. Towle, 163 Miss. 418, 141 So. 571; Chambliss v. Chambliss, 182 Miss. 480, 181 So. 715; 31 Am. Jur., Judgments, Section 606, p. 201. (Hn 4) In a direct attack on a decree, it is of course competent to show that there was no service of process. Whitley v. Towle, supra.
In Stephens v. Moore, 214 Miss. 760, 59 So.2d 846, the decree on its face showed that there was due process; but the affidavit to the bill of complaint was not sufficient to show the residence of the defendant. A certificate from the clerk, two years later, that he was unable to find any other affidavit, was held however to be insufficient, in a collateral attack to impeach the recitals of the decree.
(Hn 5) While one certificate of the clerk to the transcript of the proceedings from the Florida court showed the filing of the suit at 11:12 A.M., May 5, 1955, and the service of process at 10:24 A.M. May 5, 1955, another certificate by him showed that the bill was filed prior to the issuance of the process, and that the process was subsequently served. It must be kept in mind that this is a collateral attack, and that it is not a case where there was no attempt at service at all. Hence the first contention against the invalidity of the decree is untenable.
On the second contention, the decree was not invalid by reason of the appellee's immunity from process. In 72 C.J.S., Process, Section 80 a (2), p. 1114, it is said: "It is the majority rule that suitors in attendance in a court outside the territorial jurisdiction of their residence are immune from service of civil process while attending court and for a reasonable time before and after in going to, and returning from court." This privilege of immunity is strictly personal. Consequently, "Since the immunity is personal in its nature, service of civil process on one who is entitled to immunity from such service is not void, but merely voidable; and the immunity may be waived or lost by acts or omissions of a person otherwise entitled thereto.
" Claiming privilege; delay. The privilege may be waived not only by failure to assert it at all, but also by failure to assert it promptly, or by failure to assert it in the proper manner; and in case of failure to assert the privilege promptly, it is immaterial whether or not the delay was an intentional act of bad faith, since its effect would be the same. The privilege must be claimed at as early a stage of the proceedings as possible; and failure to claim the privilege until after it is too late to obtain service of another summons, or until after verdict, or judgment against one otherwise entitled to the privilege, constitutes a waiver thereof * * *" 72 C.J.S., Process, Section 88 a, pp. 1124-25. See also 42 Am. Jur., Process, Section 156, p. 135.
(Hn 6) The appellee did not claim his privilege of immunity before or during the trial, and in fact has never claimed such privilege at the hands of the Florida court. Consequently he must be held to have waived the same.
But the appellee also contends that the facts and circumstances had been materially altered since the date of the hearings in Florida and the date of the hearing in Mississippi.
(Hn 7) The appellee knew that his daughter weighed forty-five pounds when she was taken away by her mother, and that the child weighed only thirty-two pounds when he regained her custody on June 15th. He must have been apprised at that time of his daughter's story that she had not been properly nourished, and that her mother had been guilty of adulterous conduct with E.L. Honeywell. Although he knew this, or at least should have known it, and the other suit was not tried until July 15, 1955, he did not submit this evidence to that court, but was content to ignore it completely. Thus that judgment was conclusive of the facts and rights of the parties at the time it was rendered.
(Hn 8) Amis in his Divorce and Separation in Mississippi, Section 227, pp. 308-10, says: "A decree or judgment awarding the custody of a child, whether on divorce, separate maintenance, or habeas corpus, is res judicata and conclusive of the facts, and the rights of the parties, existing at the time it was rendered. * * * And no court will modify or change the judgment or decree touching custody, so long as the facts remain substantially the same. * * * But in all cases where the facts and circumstances have materially altered the chancery court granting the divorce or separate maintenance, may on proper proceedings alter the decree or change the custody; and in all other cases where the facts and circumstances have materially changed, a new judgment may be rendered on habeas corpus." See also Watts v. Smylie, 116 Miss. 12, 76 So. 684; Campbell v. Campbell, 159 Miss. 708, 132 So. 324; McManus v. St. Dizier, 174 Miss. 344, 164 So. 407; Savell v. Savell, 49 So.2d 726 (Miss.); Cassell v. Cassell, 211 Miss. 841, 52 So.2d 918.
(Hn 9) The only other change, according to the record, is that the appellant, on August 16, 1955, married Honeywell. A second marriage alone was not sufficient change to warrant the mother's loss of the custody of her daughter.
Thus it follows that the learned circuit judge was in error in failing to give full faith and credit to the judgment of July 15th and also in holding that there had been a material change in the circumstances. But for this error, he would of course have restored custody to the mother. Consequently the judgment of the trial court is reversed, and a judgment will be entered here, awarding custody to the appellant, under the terms of the Florida judgment.
Reversed and judgment here for appellant. McGehee, C.J., and Hall, Ethridge and Gillespie, JJ., concur.
ON SUGGESTION OF ERROR
(Hn 10) We said in our opinion that on a collateral attack, unless the contrary affirmatively appears from the record, all jurisdictional facts are conclusively presumed to have existed, including the proper service of process, whether there are recitals in the record to show them or not. Appellee contends in his suggestion of error that the stated rule applies only to domestic judgments, but not to foreign judgments. This contention is abstractly correct. The general rule is stated in 50 C.J.S., Sec. 893, pp. 502, et seq. However, this does not change the result of our decision. All that appeared to controvert jurisdiction of the Florida court was contained in the authenticated copy of the Florida proceedings which showed that service was had on the appellee at 10:24 A.M., May 5, 1955, and that the suit was filed at 11:12 A.M. the same day. If we disregard the other certificate of the Clerk of the Florida Court, which showed the suit was filed before service of process, the service was merely irregular which may have made it vulnerable on direct attack, but not on collateral attack. (Hn 11) If appellee was personally served with process, and the record shows he was, no mere irregularity in the service of the process, unless so radical as to deprive it of all citatory effect, can be set up against the judgment when brought in question in another state. 50 C.J.S. 893 (e), p. 507; 31 Am. Jur., Judgments, Sec. 598, pp. 195, 196.
(Hn 12) Appellee also contends that he alleged that no process was served on him in connection with the Florida divorce proceedings, and that we should remand the case so that he may make proof to sustain that allegation. As much as we desire that litigants have the benefit of all facts that may be available bearing on a case, successive appeals may not be allowed to enable a party to supply deficiencies in the proof of prior trials. The allegation that appellee was not served with process was an affirmative matter as to which appellee had the burden. He failed to offer any proof to sustain that contention. He had ample opportunity. (Hn 13) There must be an end to litigation, and we would not be justified in remanding the case to enable appellee to seek avoidance of the Florida judgment on a ground that he abandoned when the suit was tried below.
Our opinion is modified to the extent herein indicated. Otherwise the suggestion of error is overruled.
Opinion modified. Suggestion of error otherwise overruled.
McGehee, C.J., Hall, Lee and Ethridge, JJ., concur.