State Ex Rel. Gregory v. SUPERIOR COURT ETC.

Dissenting Opinion

Achor, J.

I do not concur in the opinion as writ*52ten by Jackson, J. My dissent to that opinion is based upon two grounds.

First: The Superior Court of Marion County, Room 5, was the first court to acquire jurisdiction of the parties and the subject matter of this action, and it being a court of general jurisdiction, it therefore had jurisdiction of the parties and the subject matter to the exclusion of all other courts.

The facts in support of the above conclusion are as follows: James R. Gregory and his wife were divorced in the Superior Court of Marion County, Room 5, and the court entered an order granting the custody of the three children of the parties to the wife and mother on November 15,1954.

Thereafter, on. March 2, 1960, the sisters of the surviving father filed an intervening petition in the divorce action relative to the custody of the three minor children of the divorced parents, in the original action for divorce. To this action the relator herein filed in said cause of action a formal appearance, a petition for determination of visiting privileges and a general answer to the intervening petition. The cause was submitted and evidence heard on the issues thus presented to the court. At the conclusion of the hearing the court entered a decree granting the custody of John and Marianne Gregory to Richard M. and Jean P. Nay, and the custody of Alison Gregory to Thomas N. Hindman, Jr. and Marjorie Hasbrook Hindman.

Nothwithstanding the above adjudication in the Superior Court, Room 5, relative to the custody of relator’s children, in which proceedings he entered a general appearance and tried the issue presented, within a few days thereafter he filed a petition in *53habeas corpus against the Nays and the Hindmans, in Superior Court, Room 1, of Marion, County, asking that the issue of custody be readjudicated and that he be given the custody of the children. The respondent court entered an order transferring the habeas corpus action to Superior Court, Room 5, on the theory that the latter court had acquired exclusive jurisdiction. Relator now seeks a writ of prohibition to prevent such transfer.

In considering the issue as to the jurisdiction, of the respective courts, we are confronted by the fact that Superior Court, Room 5, was the court which first acquired jurisdiction over the subject matter and the parties involved in both proceedings. Under the circumstances above stated, this court is bound by the rule laid down in the case of State v. Superior Court, Room 4 (1961), 241 Ind. 403, 172 N. E. 2d 668:

“The issue to be determined here is whether the Marion Superior Court, Room 4 now has jurisdiction of the matter here involved. The general rule upon which respondent herein relies has been stated as follows:
‘. . . Two courts of concurrent jurisdiction, may have jurisdiction of the same class of cases, and may acquire jurisdiction of the same person, but where one of the two first acquires jurisdiction of the subject matter and person in a particular case, the jurisdiction becomes exclusive. . ..’ I. L. E. Courts, §132, p. 538.”

Any other rule would lead to duplicity and utter confusion with respect to litigation in the several courts of concurrent jurisdiction in this state.

Secondly: I am of the opinion that although the courts of the various states are about equally divided *54upon the issue,1 both the better reasoning upon the subject and the statements made in the decisions of this court support the rule that notwithstanding the ordinary priority of parents to the custody of their children, in event of the dissolution of the unity of the family by divorce, the court which grants the divorce. must and does thereupon on behalf of the state assumes the role of parens patriae of the children, which authority and responsibility continues during the minority of the children. Duckworth v. Duckworth (1932), 203 Ind. 276, 281, 179 N. E. 773.

Furthermore, it is to be observed that although habeas corpus proceedings have been employed by the courts of this state for the purpose of determining the care and custody of the children of divorced parents following the death of one of the parents, in no case has the issue been heretofore presented as to whether habeas corpus is the exclusive procedure whereby the issue of such care and custody should be determined under such circumstances. In fact, in the Duckworth case, supra, which was a proceeding in habeas corpus filed by a surviving divorced father for the purpose of determining the custody of his child, this court specifically stated that, “A court that grants a divorce has the continuing duty, upon a proper petition, to see that the child of the *55divorced parties is properly cared for, such child being, in a sense, the ward of the court.” (My italics.) The court then, quoted with approval from the case of Keesling v. Keesling (1908), 42 Ind. App. 361, 85 N. E. 837, in which the court stated more specifically as follows:

“ ‘The nurture and proper training of such children are subjects of vital interest to the State, as well as to the children themselves, and when the family has thus been broken up, . . . the court granting the divorce must be deemed to have full and continuing jurisdiction, during the minority of such children, to make from time to time such orders and modifications thereof, with respect to their care, custody and control, as are deemed expedient, the interests of society and welfare of the children, in all such inquiries, being the paramount controlling consideration.’ ” (My italics.)

The rule above stated, relative to the continuing jurisdiction of the divorce court during the minority of the children, has been frequently repeated since that time and now must be considered to be an established principle of our fundamental law. Scott v. Scott (1949), 227 Ind. 396, 86 N. E. 2d 533; Rager v. Rager (1943), 222 Ind. 443, 54 N. E. 2d 261; Manners v. State (1936) 210 Ind. 648, 5 N. E. 2d 300; Zirkle v. Zirkle (1930), 202 Ind. 129, 172 N. E. 192.

There are strong if not compelling reasons why the divorce court, which is required by statute2 to assume jurisdiction over the custody of the children of the parties, should exercise continuing jurisdiction over the custody of such children during their minority and that this jurisdiction should not be affected by the death of one of the parents. Among these *56reasons are the following: (1) The responsibility of the state as parens patriae of the children of broken, homes is in no wise diminished by the death of one of the parents, particularly where, as in this case, the deceased was the party in whom the state awarded and charged the care and custody of the children. On the contrary, it would seem that the responsibility for the welfare of the children which the state assumed as parens patriae in, the divorce action has been increased by reason of this circumstance. (2) This court has persistently asserted that in all actions relative to the custody of the children the interest of society and the welfare of the children are the controlling considerations over all other issues, whether the action be in divorce or habeas corpus. Consistent with this rule, it is to be observed that the continuity of custodial security is of primary consideration to the welfare of children. By permitting persons who have actually assumed the responsibility of custodial care for the children of divorced parents to intervene in the divorce action, notwithstanding the death of one of the parents, opportunity is afforded for a present and continuing determination of such custodial care. However, if, following the death of a parent, the issue of custodial care could be determined solely by proceedings in habeas corpus, as contended by relator, the result would be that only the surviving parent could initiate the action, with the result that the issue of custody might be postponed indefinitely or remain undetermined throughout the period of minority of the children, since the persons actually caring for the children would be without legal status to effect such a determination. Such a rule of procedure as urged by relator might well result in continued domestic frus*57tration both to the non-parental custodians of the children and the children themselves throughout the prolonged period of their minority. Such procedure is not compatible with the thesis of the fundamental rule that in such proceedings the law is primarily concerned with the interests of society and . the welfare of the children. (3) The divorce court, which heard the evidence regarding the conduct of the parties prior to the divorce as it related to the welfare of the children and has further labored with the problem of the care and welfare of the children following the divorce of the parents, is in a better position than any other court, on the basis of the record before it, to determine the issue of the welfare of the children.

The afore-stated circumstances present strong and compelling reasons why the divorce court must maim tain continuing jurisdiction over the custody of the children during the period of their minoriy, notwithstanding the death of one of the parents. It therefore follows that although habeas corpus may also be a proper procedure for the determination of the custody of children, under the circumstances here presented the Superior Court of Marion County, Room 5, being the court in which the case was adjudicated and it having first assumed jurisdiction of both the parties and the issues here presented, it now is the court of exclusive jurisdiction over the subject matter.

. This issue is discussed at 27B C. J. S., Divorce §317(1). p. 529, as follows: “Under some authorities, the death of one of the divorced parties terminates the continuing power of the court to modify the decree with respect to custody; . .” See Ariz. — Woodford v. Superior Court (1957), 82 Ariz. 181, 309 P. 2d 973; Mo. — Graves v. Wooden (Mo. App. 1956), 291 S. W. 2d 665; N.Y. — Lund v. Lund (1949), 91 N.Y.S. 2d 698, 196 Misc. 136; Or. — Quinn v. Hanks (1951), 192 Or. 254, 233 P. 2d 767, and “but other authorities are opposed to this view.” See Fla. — Cone v. Cone (Fla. 1953), 62 So. 2d 907. Ill. — Jarrett v. Jarrett (1953), 415 Ill. 126, 112 N. E. 2d 694. Ky. — Cupp v. Cupp (Ky. App. 1957), 302 S. W. 2d 371. Va. — Judd v. Van Horn (1954), 195 Va. 988, 81 S. E. 2d 432.

. Burns’ Ann. St. §3-1219 (1946 Repl.).