Opinion
No. 36078.
March 25, 1946.
DIVORCE.
Chancellor properly declined to assume jurisdiction of divorced husband's petition for permanent care and custody of minor child who was in his custody on ground that attempted proceeding was merely advisory and not adversary, where there was no allegation that husband's right and duty to care for child was questioned.
APPEAL from the chancery court of Choctaw county, HON. T.P. GUYTON, Chancellor.
J.P. Coleman, of Ackerman, for appellant.
In this case, the appellant, as the father of Peggy Sue Bobo, a child seven years of age, filed his petition in the chancery court of Choctaw County, setting up that the child is a resident of that county, had been abandoned by its mother, who was a nonresident of the state, and sought a decree awarding him the permanent care and custody of this child, and also praying for general relief. The chancery court declined to hear evidence in support of the petition, although he found that the cause was triable, and dismissed the bill "for the reason that it declines to assume jurisdiction of the character of case stated in the petition." In other words, the chancellor held that he was without jurisdiction to enter a decree awarding the custody of this child to this father. This action on the part of the chancellor has been assigned as error on this appeal and whether or not he had jurisdiction of the case is the sole question on appeal. The chancellor should have heard the evidence and decreed for the best interest of the child, rather than dismissing the bill without a hearing. We thoroughly recognize the legal principle that courts do not pass on questions which fail to present a justiciable controversy. Yet the status of a minor residing within the State of Mississippi is prima facie a justiciable propositon. The state has that interest in it.
Smith v. Everett, 50 Miss. 575; Walker v. Walker, 140 Miss. 340, 105 So. 753, 42 A.L.R. 1525; Constitution of 1890, Sec. 159; 39 Am. Jur. 604, Sec. 18; 113 A.L.R. 889; 40 A.L.R. 940.
No appearance for appellee.
Appellant filed in the chancery court what is styled a petition for the permanent care and custody of a minor child. It asserts that he has been divorced by his wife, and that their child, seven years of age, is in his custody and being properly cared for. His former wife has again married and lives in Alabama. Although duly summoned as a defendant in this proceeding, she did not appear or file answer.
The prayer of the petition is that petitioner "be granted the decree of the court vesting in him the permanent care and custody of the child." The chancellor declined to assume jurisdiction, and the appeal is from a decree dismissing the petition.
It is at once seen that petitioner is asking the Court in effect merely to confirm an existing status and, as it were, remove any clouds that exist or may hover over his right to retain custody of his child. The proceeding is not adversary but advisory. There is no allegation that his right and duty to care for and maintain his child is questioned by word or deed. A purely declaratory decree is unknown to our practice. Petitioner's purpose is not to assail an adverse claim, but to assuage a groundless anxiety. There are, of course, procedures available in custody cases of an adversary nature. The situation here, however, falls under none of these.
Affirmed.