TURNAGE v. TYLER

A.B. Amis, Jr., and W.A. Johnson, both of Newton, for appellant.

We fail to find any other statute than 1421 Code 1930 which says the court may fix an amount to be paid in future, and a close reading and construction of that statute clearly shows that under conditions existing as therein set forth, and under those only may the court, "make an order touching the care, custody and maintenance of the children of the marriage and also touching the maintenance and alimony of the wife, or any allowance to be made to her . . . and the court may afterwards, on petition change the decree, and make from time to time such new decrees as the case may require." Clearly the court may "make all orders touching the care, custody and maintenance of the children of the marriage" . . . "when a divorce shall be decreed" . . . "and the court may afterwards, on petition, change the decree . . ." This language is clear and is not ambiguous. It means only that the court on granting a divorce may do these things but not otherwise and not at a later time. To retain jurisdiction to later "on petition change the decree" the court must have dealt with the matter by the original decree. Clearly this court does not intend to hold, nor did the lower court mean to hold that the appellee can now come in by petition and ask the Chancery Court of either Lawrence or Newton County to change the former decree to the extent of awarding her alimony at this time because the appellant now had an income of sufficient amount to support her. The court would not entertain such because the decree has become final as rendered by the Lawrence County Court, for the reason that the original bill in the cause did not seek alimony and for the reason that jurisdiction was not retained. Again clearly any such petition for a change of such decree would and must of necessity be filed in and presented to the Chancery Court of Lawrence County.

As to the petition for custody and support of the children lets see what is the status of the matter. Certainly when the decree of divorce was granted the relationship as between appellant and appellee became the same as that of either of them and any third person. No further obligation rested upon either of them as to the other, because the decree of divorce as rendered by the Chancery Court of Lawrence County, "decreed that the bonds of matrimony now existing . . . be and the same is hereby cancelled, dissolved and held for naught." Thereafter the parties were strangers in law to each other. If the appellee supported and cared for the minor children then she just like a stranger or third party could sue the father for the amount expended but such suit would be a purely civil suit and one cognizable in a court of law.

The bill does not charge or intimate that her custody of said children had ever been or ever threatened to be disturbed. Certainly then the question was and is a moot question. Again, however, appellee can procure custody by decree only, "when a divorce shall be decreed," and that was not here done. The divorce was long since granted and as said by the amended bill: "However, matter of the care and custody of said minor children was not involved in said proceedings in Lawrence County." The question of custody may arise as we understand it only in a suit for divorce or separate maintenance, or in habeas corpus proceedings. In the instant case there is no question of divorce or separate maintenance, and certainly there is no habeas corpus proceeding, and even if there were a habeas corpus proceeding it would be moot because the appellee had custody.

The rule is as we understand it that a minor child may not by next friend sue the father to require the payment of a fixed sum monthly in future for the support of said minor.

Rawlings v. Rawlings, 83 So. 146.

The appellee has twice elected in this cause and certainly she should be bound by one or the other or both. She elected in the Chancery Court of Lawrence County. Again she elected by proceeding in the Civil District Court of Orleans Parrish, Louisiana. If full faith and credit be given to the Louisiana decree as is required by Section 1, Article 4 of the United States Constitution, then again this court had no jurisdiction.

Fanchier v. Gammill, 114 So. 813; Campbell v. Lovgren, 166 So. 365.

O.B. Triplett, Jr., of Forest, for appellee.

The judgment of the Civil District Court of Louisiana, in making a monthly award for the support of the minor children of the parties litigant, was subject to change and modification, and had no finality; and the future duty of appellant to pay an increased amount was not res judicata.

Gallant v. Gallant, 123 So. 883, 154 Miss. 832; Shipp v. Shipp, 158 So. 5, 180 La. 881; Alderman v. Alderman, 157 N.C. 507, 73 S.E. 126; Griffin v. Griffin, 95 Or. 78, 187 P. 598.

The Louisiana judgment was not entitled to full faith and credit in the Chancery Court of Newton County, Mississippi, wherein appellant resided; and the jurisdiction of the latter court did not conflict with that previously exercised by the Louisiana court.

Gallant v. Gallant, 123 So. 883, 154 Miss. 832; Fanchier v. Gammill, 114 So. 813, 148 Miss. 723; Griffin v. Griffin, 95 Or. 78, 187 P. 598.

Appellee's claim for past expenditures reasonably necessary for the support and maintenance of the said children was a matter of equitable cognizance.

Schneider v. Schneider, 125 So. 91, 155 Miss. 621.

The jurisdiction of the lower court did not conflict with the jurisdiction originally exercised by the Chancery Court of Lawrence County, Mississippi.

Schneider v. Schnedier, 125 So. 91, 155 Miss. 621.

Argued orally by W.A. Johnson, for appellant.