Wheeler v. Wheeler ( 1936 )

Relator, who brought a rule, in a separation from bed and board proceedings against her husband, to show cause why the custody of their two minor children should not be granted to her, and why he should not be condemned to pay $25 per month alimony, filed an application for a writ of certiorari, to review the judgment of the district court sustaining exceptions, ratione personae and ratione materiae, to the jurisdiction of the court, and for a writ of mandamus to compel the trial judge to hear the matter on its merits. We issued a rule nisi, and respondents in their joint return averred that relator had an adequate remedy by appeal and, in the alternative, that the ruling complained of was correct.

The husband sued his wife for a separation from bed and board on the grounds of cruel treatment, and for the custody of their minor daughter, Kitty Ree, alleging that the baby, Betty Jean, who was six months old, should be left with its mother, because of its tender age. On June 1, 1935, judgment was rendered, granting him the separation and the custody of the child, Kitty Ree, but nothing was stated with reference to the baby. After placing Kitty Ree with his mother, the husband, about a week later, permanently moved out of the state of Louisiana, and established his domicile at Attica, Kan.

On October 23, 1935, the husband stopped over night in Shreveport, La., his former home, while en route to Texas, and was personally served with a rule filed by the wife, asking for the custody of both children and for alimony. The rule was set for hearing on October 30, 1935, and the exceptions to the jurisdiction of the court were filed. The trial judge originally overruled the exceptions, but, on rehearing, sustained them, and the relator petitioned this court to exercise its supervisory jurisdiction.

The law is clear that, in cases where the remedy by appeal is inadequate, this court may, in its discretion, exercise its supervisory powers, in order to prevent a denial of justice. Code Prac. arts. 829, 830, 831, and 857; sections 2 and 10, article 7, of the Constitution of Louisiana of 1921; Dill v. Lowery,166 La. 645, 117 So. 748; State ex rel. Rossner v. Berthelot,131 La. 367, 59 So. 773; T. Hofman-Olsen, Inc., v. Northern Lumber Mfg. Co., 160 La. 839, 107 So. 593; Wachsen v. Commission Council of Lake Charles et al., 162 La. 823, 111 So. 177.

In the instant case, it is said that the relator has an adequate remedy by appeal, because she does not allege that the respondent is threatening to take the children out of the jurisdiction of the court. Relator does allege "that she has no adequate remedy by appeal, as her children may be taken from her and from the jurisdiction of this court. * * *"

There is no doubt that, since the father was granted the custody of his daughter Kitty Ree, he might, at any time he chose, take the child to Kansas with him, and thereby render nil relator's rule for the custody of the little girl, if it is determined that the court has jurisdiction. As the court below sustained the exceptions, a suspensive appeal from that judgment would be ineffective to hold the matter status quo, because the father has already been granted the custody of the child and, therefore, a suspensive appeal in a matter of this kind, for all practical purposes, is equivalent to a devolutive appeal. As the father, by taking the children outside of the state at any time he might elect to do so, pending the appeal, could thereby change the situation in his favor, it is obvious that an appeal under those circumstances is not an adequate remedy. In short, where it is left in the discretion of one of the litigants to decide whether or not the appeal will be adequate and where he is at liberty to pursue a certain course of conduct, which might result in a great injustice to the other litigant, before his rights are determined, it is clear that the remedy by appeal is inadequate and presents a case where this court should exercise its supervisory jurisdiction. Pullen v. Pullen, 161 La. 721,109 So. 400.

With reference to the exceptions to the jurisdiction of the court, it must be borne in mind that this is a separation from bed and board proceeding, over which the district court is conceded to have had jurisdiction, when the case was instituted originally. It is undisputed that the children at all times remained in Shreveport, or within the jurisdiction of the court. The sole question is whether or not the father, having established his domicile in Kansas, divested the court of jurisdiction over him in a separation from bed and board proceeding, after obtaining a judgment of separation from bed and board against his wife, and the custody of the child.

In the case of Pullen v. Pullen, supra, this court held that where the defendant moved out of the parish, after a judgment of divorce had been granted in his favor and awarding him the custody of his children, who remained within the jurisdiction of the court, that the district judge still had jurisdiction to determine the question of the custody of the children, because a judgment awarding the custody of children is revocable.

In the case of Lukianoff v. Lukianoff, 166 La. 219,116 So. 890, after personal citation had been served on the defendant, the plaintiff secured a judgment of separation from bed and board in the parish of Caddo, La., and thereafter both parties became residents of New York. After more than a year had elapsed, she sued her husband for a final divorce, and he was served with citation through a curator ad hoc, under the provisions of Act No. 296 of 1910. No question of alimony or custody of children was involved. The curator ad hoc filed an exception to the jurisdiction of the court, which was sustained by the district judge. In reversing the decision of the lower court, 166 La. 219, at page 223, 116 So. 890, 891, we said:

"The later acts, Act No. 25 of 1898 and Act No. 296 of 1910, eliminate any discussion or doubt as to the question of the jurisdiction of the court, rendering the decree of separation, to grant a judgment of absolute divorce based upon such decree, and as to the right of a plaintiff to resort to constructive service where the defendantis an absentee.

"It is well established as a general rule that, where the jurisdiction of the person or of the res has once attached, it is not defeated by a removal of the person or the res beyond the jurisdiction of the court. 15 C.J. 824; 7 R.C.L. 1045; United States v. Dawson, 15 How. 467, 14 L.Ed. 775; Lofton v. Collins,117 Ga. 434, 43 S.E. 708, 61 L.R.A. 150; McSherry v. McSherry,113 Md. 395, 77 A. 653, 140 Am.St.Rep. 428.

"We are of the opinion that the district court of Caddo parish was vested with jurisdiction to grant plaintiff a divorce a vinculo matrimonii." (Italics ours.)

If the court retained jurisdiction of the separation from bed and board and divorce proceedings against an absentee, who was served by substituted process, it is clear that, if the defendant had been served personally, within the jurisdiction of the court, the court would have jurisdiction over him. In other words, the court retained jurisdiction of the res, i.e., the marital status of the parties litigant and all demands incidental thereto.

In the instant case, the rule was served upon respondent, in person, in an incomplete proceeding over which the trial court originally had jurisdiction. The district court continued to have jurisdiction of the separation from bed and board suit. Having acquired jurisdiction of the matter, the court retained it over both parties in all matters incidental thereto. The question of alimony and the custody of the children are incidental demands growing out of the separation from bed and board suit. The judgment with reference to the custody of the child was not irrevocable. The demand for alimony pendente lite is also incidental. The wife remained within the jurisdiction of the court, the child remained in the parish of Caddo, the defendant was personally served there, and the proceedings were pending there. We conclude that our learned brother below erred and that the exceptions should have been overruled.

We have been referred to the case of Person v. Person,172 La. 740, 135 So. 225. In that case, after this court determined, as a matter of fact, from the evidence, that the father was domiciled in the state of Louisiana, and therefore the court had jurisdiction over him, it made certain observations with reference to the law that were purely obiter dicta. The expressions therein contained, if in conflict with the opinions of this court in Pullen v. Pullen and Lukianoff v. Lukianoff, supra, cannot stand.

For the reasons assigned, the rule nisi is made absolute, the writs are perpetuated, the judgment of the lower court is set aside, the exceptions are overruled, and the case is remanded to the district court for further proceedings, according to law and consistent with the views herein expressed; respondent to pay the costs of this court, all other costs to await the final outcome of the proceeding.