State v. Worthington ( 1933 )

The circuit court in equity has had jurisdiction of the controversy between W. J. Worthington and his wife and children, particularly in the matter of maintenance and support of the children extending through many years, and in which numerous orders were made on petitions after the final decree, and several appeals have come to this court. Worthington v. Worthington, 224 Ala. 237, 139 So. 334; Id., 218 Ala. 80,117 So. 645; Id., 215 Ala. 447, 111 So. 224.

In all those cases the question on appeal related to the provision for the children, and its modification from time to time. We have held in them all that the circuit court retained impliedly, and still possessed, the power to modify the provision due to changed conditions and emergencies subsequently arising.

It appears that such a proceeding is still pending in that court. In it the father of the children petitioned for a small reduction in the amount decreed for the support of the children, and that he be relieved of the payment of any such sum to the mother of the children during the period each year when, under the decree, he has the right to their custody. That court has ample power not only to change the allowance due to changed conditions, but to enforce its payment by summary proceedings. 19 Corpus Juris, 359; Ex parte Whitehead, 179 Ala. 652,60 So. 924; Murray v. Murray, 84 Ala. 363, 4 So. 239.

Elaborate provision is made by statute, chapter 157, Code, section 4479 et seq., to accomplish the same purpose by criminal and quasi criminal proceedings in the probate or juvenile court. Under its provisions the former wife began criminal suit in the juvenile court of Montgomery county where she and the children reside. The circuit court, in equity, in Jefferson county, having and exercising jurisdiction of the maintenance suit we have mentioned, held that the juvenile court could not by its issuance of such a warrant, pending such hearing, proceed under the statute to enforce payment for the support of his children, and ordered the defendant discharged from such arrest when he brought habeas corpus for that purpose.

Whether the juvenile court can proceed under such circumstances is the only question considered by the Court of Appeals.

We should look to the nature of the statutory provisions to determine if they extend authority to secure maintenance of the children through criminal or quasi criminal actions pending a current suit in equity, having and then exercising full jurisdiction of the entire subject-matter. The question has received consideration in more or less analogous circumstances in other states, as shown in 22 A.L.R. 795 et seq., note, and 46 Corpus Juris, 1356. It does not seem to appear in them that at the very time of the institution of the criminal charge the chancery court had before it, then under consideration, the exact question of the extent and performance of the same duty sought to be coerced by the criminal charge.

We are not here confronted with a case similar to those treated in the cases there cited. If the only question were the failure of the father to obey the order of the chancery court making provision for the support of the children, it would present a different question from that shown in this case. But some states hold that since the court of chancery has jurisdiction to enforce its decrees, an independent action or criminal proceeding for the same purpose is not available. We cite the following cases, which seem to be in the minority: State v. Coolidge, 72 Wn. 42, 129 P. 1088; People v. Dunston,173 Mich. 368, 138 N.W. 1047, 42 L.R.A. (N.S.) 1065; State v. Sweet, 179 Minn. 32, 228 N.W. 337.

Our task is to examine our statutes, as construed by our courts, and see if they were intended to operate to the exclusion of current pending proceedings of another court of concurrent general jurisdiction seeking to modify its order and with full power to enforce the duty of the father in this connection as well as to decide just what that duty is. The purpose of our statutes on this subject, chapter 157, Code, is not the punishment of a crime as ordinarily understood, though it is in that form; but to force maintenance and support for the children (for we are here only concerned with children). The proceeds derived from such proceedings, criminal in nature though they are, do not go into the fine and forfeiture fund, as in other criminal cases, but to the probation officer for their (the children's) support. Section 4481, Code; Swindle v. State ex rel., 225 Ala. 247,143 So. 198. Pending appeal from the juvenile court to the circuit court, and then to the Court of Appeals, provision may be made by it for their support, by analogy to orders for temporary alimony. Ex parte Blue, 218 Ala. 113, 118 So. 147; section 4487, Code.

Those Code sections show a purpose to provide an effective and speedy method of securing support of his wife and children, when he has deserted or willfully neglected, refused, or failed to provide for them, when in destitute or necessitous circumstances. It is not thereby attempted to confer on those courts the exclusive right to pass upon question of alimony and support, and take such power away from the court of chancery having general jurisdiction in this respect. Gabbert v. Gabbert, 217 Ala. 599, 117 So. 214; Ex parte Pruitt, 207 Ala. 261,92 So. 426; State ex rel. Sellers v. Murphy, 207 Ala. 290,92 So. 661; Hall v. Kirkland, 225 Ala. 158, 142 So. 61.

The jurisdiction of the chancery court was not in any respect curtailed or affected. Ex parte Jackson, 212 Ala. 496,103 So. 558; Sellers v. Sellers, 212 Ala. 290, 102 So. 442.

The criminal charge here sought was only by virtue of section 4484, Code, since it was in the juvenile court, and not under our vagrancy statute. Section 5571, subdiv. 8.

We here leave unsettled, for an opinion would be only dictum, the question of whether the juvenile court would have the power to proceed under chapter 157, in a case when the chancery court had decreed divorce, and made provision for the custody and support of the children, and the father, without seeking any relief from that decree in such court of chancery, is charged under section 4480, Code, with willfully neglecting, refusing, or failing to provide means of support whether as declared in the chancery court or not, and when that court of chancery has not then under consideration the matter of fixing or enforcing such duty. But we are clear that when that court then has such matters under consideration in such manner as to invoke an exercise of its general powers, its jurisdiction is exclusive of any other proceeding for the same purpose, or to accomplish the same end.

The opinion of the Court of Appeals is based upon such reasoning, and is in accord with our views. We have been led into a further discussion of the subject on account of the urgent briefs submitted on behalf of the state.

Writ of certiorari is denied.

ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.