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  • 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.
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  • ETHRIDGE, J.
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  • 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.
Judges
  • ETHRIDGE, J.
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Smart Summary

Case Summary — No. 40991 (January 19, 1959)

Factual and Procedural Background

Ralph Cox, Jr. (appellee) filed a bill for divorce in the Chancery Court, Second Judicial District of Bolivar County, Mississippi, on February 9, 1957, against his wife Lorraine M. Cox (appellant). The bill alleged adultery and sought custody of their five-year-old daughter, Maureen, who had lived with her father in Bolivar County for over a year. The defendant-wife was personally served in Bolivar County. The wife filed no answer and offered no witnesses. On May 29, 1957 the Chancery Court entered a final decree granting the husband a divorce and awarding him permanent custody of the child.

Prior litigation existed: (1) a custody action initiated by the husband in the Chancery Court of Coahoma County shortly after he moved to Mississippi (within five days), which was reversed by this court in Cox v. Cox, 102 So.2d 799, because Mississippi did not permit a standalone custody suit; the Coahoma opinion also noted a pending Pennsylvania divorce proceeding and commented on comity (a statement the present opinion deems unnecessary and non-controlling); and (2) a divorce action started by the husband in the Court of Common Pleas of Allegheny County, Pennsylvania, in November 1953, in which a consent order had given temporary custody to the mother and which remained pending (and later resulted in denial of divorce by the Pennsylvania court after the Mississippi decree). The wife's motion to dismiss the Mississippi suit for lack of jurisdiction alleged that the Pennsylvania proceeding precluded Mississippi jurisdiction. The Chancery Court of Bolivar County denied the motion; the denial was appealed and is the subject of this opinion.

Legal Issues Presented

  1. Whether the Mississippi trial court should have sustained the defendant's motion to dismiss for lack of jurisdiction because of a then-pending divorce action in Pennsylvania brought by the husband on different grounds.
  2. Whether a temporary custody order entered by a Pennsylvania court precluded the Mississippi court from awarding custody of the minor child to the husband.

Arguments of the Parties

Appellant's Arguments

  • I. Mississippi should accord full faith and credit to the custody and divorce order of the Pennsylvania court; when the Pennsylvania court incorporated the stipulation into an order it adjudicated custody and divorce status (citing Fortson v. Fortson; Perry v. Perry; 17A Am. Jur.; 27 C.J.S.).
  • II. The U.S. Constitution requires Mississippi to give full faith and credit to the Pennsylvania custody order (citing Cole v. Cole; Haynie v. Hudgins; Little v. Little; Poole v. Mississippi Publishing Co.; other authorities and Article IV, Sec. 1, U.S. Const.).
  • III. Complainant (husband) should not be permitted to abandon his Pennsylvania action (citing Mitchell v. Film Transit; State v. Hemingway; Standard Pennsylvania Practice; Griffith's Chancery Practice).
  • IV. Any jurisdiction acquired by Mississippi courts should not be exercised in light of the foreign proceedings (citing Am. Jur., C.J.S., and ALR authority).

Appellee's Arguments

  • I. On the merits, the decree of the Lower Court (Mississippi trial court) is correct (citing Bassett v. Sims; Bland v. Stoudemire; Cassell v. Cassell; Evans v. Evans; Scott v. Scott; 27 C.J.S.).
  • II. The full faith and credit doctrine does not apply to bar the Mississippi action as to the New York or Pennsylvania proceedings (citing multiple authorities and decisions).
  • III. Records of the Pennsylvania and New York proceedings were not introduced and thus cannot be considered on this appeal (citing Armstrong v. Jones; Bridgeman v. Bridgeman; and other authorities).
  • IV. The pendency of foreign proceedings was no ground for dismissal of the Mississippi case (citing Streckfus Steamers v. Kiersky; abatement authorities).
  • V. A stay of proceedings is within the sound discretion of the trial court and there is no showing of abuse of discretion (citing Beneke v. Tucker; Pennsylvania Cox decisions; other authorities).
  • VI. Foreign custody proceedings present no bar to the Mississippi action on custody (citing Bassett v. Sims; Cole v. Cole; Evans v. Evans; Findley v. Findley; and other authorities).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Fortson v. Fortson, 195 Ga. 750, 25 S.E.2d 518 Cited by appellant to show that when a court incorporates terms of a stipulation in an order it constitutes an adjudication of custody and divorce status at time of rendition. Cited in appellant's brief; court did not adopt this as dispositive over the facts here.
Perry v. Perry, 212 Ga. 668, 95 S.E.2d 2 Similar to Fortson — cited for the nature of an incorporated stipulation as adjudication. Cited in appellant's brief; not treated as controlling by this Court in resolving jurisdictional question.
17A Am. Jur., Divorce and Separation, Sec. 822 Text authority on divorce and effect of orders. Listed by appellant; not determinative in the Court's analysis.
27 C.J.S., Divorce, Sec. 311 Text authority cited by appellant re: adjudication effect of orders. Cited in appellant brief; Court relied on other principles to reach its decision.
Cole v. Cole, 194 Miss. 292, 12 So.2d 425 Appellant cited for full faith and credit obligation; appellee later cited for custody principles. Referenced in briefs; Court discussed full faith and credit limits and did not treat the Pennsylvania temporary custody as constitutionally controlling.
Haynie v. Hudgins, 122 Miss. 833, 85 So. 99 Cited by appellant on full faith and credit; also cited in appellee authorities on custody principles. Listed by parties; Court noted the limits of comity and full faith and credit in the context of temporary custody.
Little v. Little, 249 Ala. 144, 30 So.2d 386 Cited by appellant to support full faith and credit arguments. Cited in appellant brief; Court's decision did not give the Pennsylvania temporary order final conclusive effect.
Poole v. Mississippi Publishing Co., 208 Miss. 364, 44 So.2d 467 Cited by appellant re: constitutional/full faith and credit obligations. Cited in appellant brief; Court's holding limited the effect of the foreign temporary custody order.
State v. Black, 239 Ala. 644, 196 So. 713 Cited by appellant on constitutional/full faith and credit matters. Cited in appellant brief; not treated as dispositive here.
State v. Superior Court, 25 Wn.2d 125, 169 P.2d 626 Cited by appellant on full faith and credit/comity issues. Cited in appellant brief; Court exercised discretion to refuse comity here.
Strickland v. Humble, 194 Miss. 194, 11 So.2d 20 Cited by appellant in discussion of full faith and credit/comity. Cited by appellant; Court did not rely on it to require dismissal.
Art. IV Sec. 1, U.S. Constitution Full Faith and Credit Clause invoked by appellant as requiring recognition of the Pennsylvania order. Court considered limits of full faith and credit for temporary custody orders and concluded they are not finally conclusive in the forum state.
Anno. 171 A.L.R. 1399 Annotated authority cited by appellant on issues of full faith and credit. Referential only; not treated as dispositive in Court's resolution.
Keezer On The Law of Marriage Divorce, Sec. 552 Treatise cited by appellant re: marriage/divorce law. Cited by appellant; Court reached its decision based on Mississippi principles and facts presented.
Mitchell v. Film Transit, 194 Miss. 550, 13 So.2d 154 Cited by appellant to argue complainant should not abandon his foreign action. Cited in appellant brief; Court declined to dismiss Mississippi action on that ground.
State v. Hemingway, 69 Miss. 491, 10 So. 575 Appellant authority on abandonment of action/related procedural matters. Cited by appellant; Court resolved jurisdictional question differently.
Standard Pennsylvania Practice, Sec. 9 Practice authority cited by appellant re: Pennsylvania procedure. Referenced by appellant; Court noted the absence of authenticated Pennsylvania records on the dismissal motion.
Griffith's Miss. Chancery Practice, Sec. 534 Cited by appellant regarding procedure and abandonment/related practice. Listed by appellant; not controlling in Court's decision to affirm.
Am. Jur., Courts, Sec. 90 Cited by appellant to argue limits on exercise of jurisdiction. Cited by appellant; Court found Mississippi jurisdiction proper under the facts.
C.J.S., Courts, Sec. 90 Text authority invoked by appellant on jurisdictional limits. Cited by appellant; Court exercised jurisdiction and refused dismissal.
Anno. 19 A.L.R. 2d 301 ALR annotation cited by appellant regarding jurisdictional exercise. Referenced by appellant; Court nonetheless affirmed exercise of jurisdiction.
Griffith's Miss. Chancery Practice, Sec. 42 Practice authority cited by appellant on jurisdictional questions. Cited by appellant; Court affirmed jurisdiction in this case.
Bassett v. Sims, 220 Miss. 210, 70 So.2d 530 Cited by appellee on merits and custody principles. Used by appellee to support correctness of the decree; Court referenced the body of authority supporting Mississippi custody jurisdiction.
Bland v. Stoudemire, 219 Miss. 526, 69 So.2d 225 Cited by appellee in support of the lower court's decree. Referenced by appellee; Court's ruling affirmed the lower court's custody award.
Cassell v. Cassell, 211 Miss. 841, 52 So.2d 918 Cited by appellee for support of decree on merits. Cited in appellee brief; Court affirmed the trial court's merits determination (no factual dispute).
Evans v. Evans, 195 Miss. 320, 15 So.2d 698 Cited by appellee on merits and custody law. Referenced in support of court's jurisdiction to decide custody in Mississippi.
Scott v. Scott, 219 Miss. 614, 69 So.2d 489 Appellee authority on divorce and custody principles. Used by appellee; Court relied on established Mississippi principles concerning custody and divorce jurisdiction.
27 C.J.S., Divorce, Sec. 303 p. 1162 Text authority cited by appellee re: divorce law. Cited in appellee brief; Court cited related C.J.S. sections regarding pendency not being a bar.
Bagwell v. Bagwell, 153 Fla. 471, 14 So.2d 841 Cited by appellee in discussing full faith and credit not applying here. Cited in appellee brief; Court held pendency of a foreign action is not an automatic bar.
Blauvelt v. Blauvelt, 199 Ark. 710, 136 S.W.2d 201 Cited by appellee on inapplicability of full faith and credit in this context. Cited in appellee brief; Court determined Pennsylvania pendency did not preclude Mississippi action.
Coleman v. Coleman, 157 Fla. 515, 26 So.2d 445 Cited by appellee as part of authorities on full faith and credit or pendency issues. Cited in appellee brief; Court considered pendency not controlling.
Cox v. Cox, 144 A.2d 485 Cited by appellee among authorities relating to related foreign proceedings (as a cited case). Referenced in appellee brief; elsewhere in opinion other Cox citations to Pennsylvania proceedings are discussed.
Etheridge v. Webb, 210 Miss. 729, 50 So.2d 603 Cited by appellee on related divorce law principles. Cited in appellee brief; Court relied on Mississippi authority to support jurisdiction and custody determination.
Gaud v. Gaud, 203 Ark. 244, 156 S.W.2d 225 Cited by appellee re: interjurisdictional divorce/custody matters. Cited in appellee brief; Court nonetheless affirmed Mississippi jurisdiction.
Gordon v. Gordon (Fla), 59 So.2d 40 Cited by appellee about full faith and credit or foreign decree effect. Cited in appellee brief; Court acted consistent with principle that pendency is not per se controlling.
Hardy v. O'Pry, 102 Miss. 197, 59 So. 73 Cited by appellee on procedural or jurisdictional matters. Cited in appellee brief; Court resolved jurisdiction in favor of Mississippi forum.
Pace v. State ex rel. Rice, 191 Miss. 780, 4 So.2d 270 Cited by appellee for related procedural principles. Cited in appellee brief; Court did not dismiss for pendency of foreign action.
Pate v. Evans, 232 Miss. 6, 97 So.2d 737 Cited by appellee for procedural and jurisdictional points. Cited in appellee brief and again; Court noted failure to introduce foreign records on appeal.
Thompson v. Hill, 152 Miss. 390, 119 So. 320 Cited by appellee for procedural law supporting non-application of full faith and credit here. Included in appellee's authorities; Court affirmed Mississippi action despite foreign pendency.
Van Norman v. Van Norman, 205 Miss. 114, 38 So.2d 452 Cited by appellee on divorce/custody principles. Cited in appellee brief; Court's holding consistent with Mississippi authority cited.
Viator v. Stone, 201 Miss. 487, 29 So.2d 658 Cited by appellee on evidentiary/record issues and custody law. Used to support the proposition that foreign records not introduced cannot be considered on appeal; Court referenced that principle.
Wilson v. Wilson, 190 Miss. 334, 22 So.2d 161 Cited by appellee on divorce procedural authorities. Cited in appellee brief; Court affirmed exercise of jurisdiction here.
17 Am. Jur., Divorce, Secs. 544, 547 pp. 639, 643 Text authority cited by appellee on res judicata and related divorce issues. Cited in appellee brief; Court concluded issues in the two suits were different and res judicata did not apply.
17A Am. Jur., Divorce, Sec. 942 p. 126 Text authority cited by appellee on procedural aspects. Cited in appellee brief; Court relied on general principles regarding pendency and stays.
27 C.J.S., Divorce, Sec. 326 p. 1271 Text authority cited by appellee on res judicata and related topics. Referenced; Court applied principle that different issues/facts avoid res judicata.
Armstrong v. Jones, 198 Miss. 627, 22 So.2d 7 Cited by appellee for the proposition that records not introduced cannot be considered on appeal. Applied by Court to note that Pennsylvania and New York records were not in the record on appeal.
Bridgeman v. Bridgeman, 192 Miss. 800, 6 So.2d 608 Cited by appellee regarding appellate consideration of records. Referenced by Court to support non-consideration of foreign records not introduced.
Interstate Co. v. Jolly, 156 Miss. 199, 125 So. 406 Cited by appellee re: appellate record limitations. Cited by appellee; Court noted necessity of authenticated foreign records to consider such proceedings on appeal.
Streckfus Steamers v. Kiersky, 174 Miss. 124, 163 So. 830 Cited by appellee to show pendency of foreign proceedings is not ground for dismissal. Court relied on this authority in stating that pendency of action elsewhere is not an automatic bar.
1 Am. Jur., Abatement and Revival, Sec. 39 p. 42 Text authority cited by appellee on abatement/pendency issues. Used by Court to support discretion not to dismiss for pendency of foreign proceedings.
1 C.J.S., Abatement, Sec. 75 Authority on abatement cited by appellee. Referenced by Court in discussing abatement and discretionary relief.
1 C.J.S., Actions, Sec. 133 (c) Cited by appellee to support that a stay is not a matter of right but rests in discretion. Court explicitly adopted the principle that a stay is discretionary (Hn 3).
27 C.J.S., Divorce, Sec. 99 p. 684 Cited by appellee for the proposition that pendency elsewhere is not a bar. Court relied on this text in holding pendency of a foreign divorce action does not prevent a local action when defendant was personally served.
Beneke v. Tucker, 90 Or. 230, 176 P. 183 Cited by appellee on discretion to stay proceedings. Cited by appellee; Court found no abuse of discretion in denying stay/dismissal.
Cox v. Cox, 137 A.2d 779 (Pa.) Cited in appellee brief as a Pennsylvania decision related to the parties' foreign proceedings. Cited by appellee; Court discussed Pennsylvania proceedings and their later denial of divorce but held Mississippi court could act.
Evans v. Evans (Tex. Civ. App.), 186 S.W.2d 277 Cited by appellee on discretion and stay matters. Referenced by appellee; Court upheld the trial court's discretion in denying dismissal or stay.
Greenberg v. Greenberg, 11 N.J. Super. 582, 78 A.2d 723 Cited by appellee concerning stays and discretion. Cited by appellee; Court confirmed stay is discretionary.
Lanova Corp. v. Atlas Imperial Diesel Engine Co., 44 Del. 593, 64 A.2d 419 Cited by appellee on discretion in stays or procedural matters. Cited in appellant's authorities list; Court affirmed discretionary nature of stays.
Mills v. Howard (Tex. Civ. App.), 228 S.W.2d 906 Cited by appellee on stay/discretion principles. Referenced by appellee; Court upheld trial court's exercise of discretion.
Newell v. Newell, 77 Idaho 335, 293 P.2d 663 Cited by appellee in addressing stays and comity issues. Cited by appellee; Court relied on general rule that stay is discretionary.
In re Stockman, 71 Mich. 180, 38 N.W. 876 Cited by appellee regarding discretion and related procedural questions. Referenced by appellee; Court found no abuse of discretion here.
Anno. 19 A.L.R. 312, et seq. Annotated authority cited by appellee on stays and discretion. Referenced by appellee; Court affirmed discretionary nature of stay relief.
Findley v. Findley, 240 N.Y. 429, 148 N.E. 624 Cited by appellee on the non-bar effect of foreign proceedings as to custody. Cited in appellee brief; Court concluded Mississippi had jurisdiction to determine custody.
Gallant v. Gallant, 154 Miss. 832, 123 So. 883 Cited by appellee concerning custody jurisdiction. Used to support Mississippi authority for determining custody.
Hatrak v. Hatrak, 206 Miss. 239, 39 So.2d 779 Cited by appellee on custody matters. Referenced in appellee brief; Court affirmed its jurisdiction to address custody.
Haynie v. ___ 122 Miss. 838, 85 So. 99 Cited by appellee (incomplete citation in text) on custody/full faith and credit matters. Cited by appellee; Court's analysis did not rely on this incomplete citation as controlling.
Latham v. Latham, 223 Miss. 263, 78 So.2d 147 Cited by Court for principle that a foreign judgment has no constitutional claim to more conclusive effect in the forum than in the state where rendered. Court relied on Latham to hold that Pennsylvania temporary custody order lacked constitutional claim to final and conclusive effect in Mississippi.
Logan v. Rankin, 231 Miss. 749, 94 So.2d 330 Cited by appellee on custody/jurisdiction principles. Cited in appellee brief; Court affirmed Mississippi's authority to decide custody.
Wear v. Wear, 130 Kan. 205, 285 P. 605 Cited by appellee on custody law. Referenced in appellee brief; Court affirmed custody award to husband under Mississippi jurisdiction.
39 Am. Jur., Sec. 25 p. 614 Text authority cited by appellee on custody matters. Cited by appellee; Court's custody determination was based on Mississippi jurisdiction and facts.
27 C.J.S., Divorce, Sec. 329 p. 1283 Text authority cited by appellee on custody and foreign proceeding issues. Referenced by appellee; Court held Pennsylvania temporary order was not final in Mississippi.
Cox v. Cox, 102 So.2d 799 Mississippi Supreme Court earlier opinion reversing the Coahoma County custody decree; referenced by both parties and the Court. Court distinguished that prior opinion (which involved a custody-only suit filed within days of the husband's move) from the facts here and noted the Coahoma opinion's statement about comity was unnecessary and non-controlling.
Cox v. Cox, 144 A.2d 458 (Pa. 1958) Pennsylvania decision referenced regarding denial of divorce by the Pennsylvania court after the Mississippi decree. Court noted the Pennsylvania court later denied divorce; nonetheless, Mississippi court's earlier exercise of jurisdiction and award of custody was proper under the circumstances.
Commonwealth of Pa. ex rel. Cox v. Cox, 137 A.2d 779 (Pa. 1958) Pennsylvania proceedings involving the parties cited in the opinion. Referenced to indicate different grounds and chronology; Court concluded Mississippi's adjudication on adultery (occurring after Pennsylvania filing) was not res judicata.

Court's Reasoning and Analysis

The opinion frames two central issues: (1) whether the Mississippi chancery court should have dismissed the divorce action for lack of jurisdiction because of a pending Pennsylvania divorce action, and (2) whether a Pennsylvania temporary custody order precluded Mississippi from awarding custody to the husband.

The court established the following factual and legal baseline: the husband had established legal residence in Mississippi (residency for more than one year was found by the trial court), had purchased a home, and the child had been living with him in Bolivar County for over a year. The defendant-wife was personally served in Mississippi. The Mississippi trial court entered a final decree granting divorce (on the ground of adultery) and awarding permanent custody to the husband; the wife offered no answer or witnesses and the decree was supported by undisputed testimony.

On the jurisdictional challenge, the court explained that the pending Pennsylvania action (filed in November 1953) had not produced a final decree by the time of the Mississippi hearing; moreover, the Pennsylvania action was based on different grounds ("indignities and cruel and barbarous treatment"), whereas the Mississippi action alleged adultery with relevant events occurring after the Pennsylvania suit was filed. The court applied established authorities that pendency of a foreign divorce action is not a bar nor automatic ground for a stay of proceedings in a state in which the defendant has been personally served (citing 27 C.J.S.; 1 C.J.S.; 1 Am. Jur.).

The court emphasized that a stay is not a matter of right but rests in the sound discretion of the trial court, and found no abuse of discretion in refusing to dismiss or stay the Mississippi action. The court observed that where the issues in the two suits are entirely different, a prior judgment is not res judicata as to the later suit; because the Mississippi adultery allegations concerned events occurring after the Pennsylvania filing, res judicata did not apply.

As to the Pennsylvania temporary custody order, the court reasoned that such an order was subject to change and did not have a constitutional claim under the Full Faith and Credit Clause to final and conclusive effect in Mississippi. The court relied on the principle that a foreign judgment has no constitutional claim to a more conclusive or final effect in the forum state than it has in the state where rendered (citing Latham v. Latham). Given that the husband and child were resident in Mississippi, the Mississippi court had jurisdiction to determine custody.

The court also noted procedural limitations: the motion to dismiss did not include authenticated Pennsylvania records; even if the motion had referenced records in another file, the court concluded the established facts independently warranted refusing dismissal or stay, so it did not need to resolve the pleading sufficiency question.

Holding and Implications

Affirmed.

Holding (core ruling): The Mississippi Supreme Court affirmed the Chancery Court's decree granting the husband a divorce and awarding him permanent custody of the minor child. The trial court properly refused to dismiss or stay the Mississippi action despite a pending but undecided Pennsylvania divorce proceeding, and the Pennsylvania temporary custody order did not have constitutionally controlling final effect in Mississippi.

Implications:

  • Direct effect: The Mississippi judgment granting divorce and awarding custody to Ralph Cox, Jr. was upheld.
  • Jurisdictional principle reaffirmed: Pendency of a foreign divorce action is not an automatic bar to a similar action in a forum where the defendant has been personally served and the plaintiff has established residency; a stay is discretionary.
  • Full Faith and Credit limitation: A temporary custody order in a foreign court does not automatically bind the forum state as final and conclusive under the Full Faith and Credit Clause.
  • The opinion does not purport to create a novel legal rule beyond applying established authorities and principles to the facts; it distinguishes a prior custody-only case and explains why comity/full faith and credit were not controlling under these circumstances.

Opinion by Justice Ethridge; Roberds, P.J., Hall, Arrington, and Gillespie, JJ., concur.

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COX v. COX

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.

ETHRIDGE, J.

(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.

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COX v. COX
(Jan 19, 1959)