This сause is before us on a writ of error to the Chancery Court, by defendant.
The petition for same alleges and it appears from the record that in the final dеcree of divorce awarded complainant in the above styled cause on January 25, 1949, it was ordered with reference to the custody of the minor childrеn as follows:
‘ ‘ and it further appearing to the Court from the testimony of complainant, of her mother, the witness Mrs. Evie Harper, and the statements of defendant’s attоrney at the hearing, that the custody of the minor children of the parties have (sic) heretofore been placed by the Juvenile Court with the complainant, in thе care of said Mrs. Evie Harper; and that no decision as to custody of said minor children should be made by this Court at this time, but that all matters respecting their custody should rеmain within the control of the Juvenile Court”. The assignments of error are that it was error to decline to make an order as to custody because the welfarе of the children required an order as to custody; that it was error for the Chancery Court to share its jurisdiction with the Juvenile Court by thus splitting the jurisdiction, *355 or splitting the canse of аction; that it was beyond the jurisdiction of the Chancery Court to make such an order.
We should first note that, that so far ás this record shows, the children were awarded to the complainant and placed in the care of her mother, Mrs. Evie Harper. We cannot consider statements dehors the record made by counsel fоr petitioner herein, the father, to the effect that the children are now in the custody of others than the person to whom custody was awarded by the Juvenile Court.
Aside from that observation, the cause is before us on the technical record only, there being no bill of exceptions preserving the testimony given at the оral hearing. In this situation we must presume the evidence justified the decree of the Chancellor, unless the technical record shows otherwise.
The Court is vested with widе discretion in matters of divorce, alimony and attorney’s fee, custody and support of minor children and appellate courts will not interfere exceрt upon a clear showing of an abuse of that discretion. Banks v. Banks,
In Gibson’s Suits in Chancery (1937 ed.), section 1103 it is said: ‘ ‘ The custody of the children may, in the discretion of the Court, be аwarded to either party; or some to one and some to the other; or the Court may decline to make any disposition of them . . „ . ”.
Moreover, the technical record shows the reason why the Court.reserved the question of custody; it was to avoid interference with another Court which was already exercising its jurisdiction on the minors.
*356 Recently our Supreme Court lias held such jurisdiction to he exclusive, except where the statute provides otherwise.
In Cantrell v. State,
In Kilgrow v. West,
In Juvenile Court of Shelby County v. State,
While the Chancery Court has inherent jurisdiction of the persons and estates of minors, as shown in G-ibson, Section 970 and N. 9, and jurisdiction to fix custody in divorce proceedings, the State of Tennesseе, as shown in the West case, supra, acting as parens patriae has conferred upon Juvenile Courts the special, exclusive orginal jurisdiction to determine custody of a “dependent” or “delinquent” minor, because custody is necessarily involved when either of those conditions *357 as defined by the Statute exists; the parties to such proceedings are the State against the minor and the parents, or other persons having custody, for the best interest and welfare of the child and society generally.
In a divorce proceeding the contest for custody of the children is between the parents or their respective adherents, although the welfare of the minor is the determinative question.
“. . . The jurisdiction is usually held to be exclusive, and the court cannot be deprived thereof by proceedings in another court in a divorce case. So where a court having jurisdiction of proceedings affecting the custody of a child, such as a divorce cоurt, has awarded the child to one parent, there is nothing to prevent the juvenile court from finding that the child is being neglected, and therefore should be taken awаy from the parent. On the other hand the juvenile court will not adjust parental disputes concerning the care and education of a minor, such matters being for а court of equity where the parents are actual parties”. 43 C. J. S., Infants, Section 99b, p. 243.
In attempts to rationalize the conflict of jurisdiction the courts of differеnt States have proceeded upon various lines of reasoning, influenced by the common law and statutes of the particular forum. The question is annotated in 11 and 78 A. L. R., which are referred to in 146 A. L. R. 1166.
We think it a sound and simple view that the Chancery Court never loses jurisdiction of the question of custody, that is, the subject matter as part оf a divorce proceeding, but the right and power to exercise that jurisdiction upon the person of the minor may be suspended temporarily or permаnently either prior to *358 or after the inception of the divorce case hy reason of the exercise by the Juvenile Court of the special, exclusive jurisdiction conferred on it to determine whether the minor is “dependent” or “delinquent”, as defined by the Statute and hence necessarily to determine custody.
Counsеl for petitioner relies upon the maxim “when Chancery has jurisdiction for one purpose, it will take jurisdiction for all purposes”.
In the light of what we have said heretofore, we do not think this maxim can he applied here; to do so would be tantamount to reviewing the judgment of the Juvenile Court by an appeal to Chancеry.
Counsel cites Henderson v. Henderson,
There the Juvenile Court was attempting to exercise its jurisdiction under the Act of 1915, Code Section 11379 et seq., to punish a husband for failure to provide support, when the Circuit Court was already exercising its jurisdiction in the divorce suit. The Supreme Court simply held that this would lead to a clash of authority and that the Circuit Court would adequately take care of the matter by contempt proceedings; that the Juvenile Court might reach a different conclusion as to the defendant’s ability to provide support.
The case, if applicable at all, rather supports the action taken by the Chancellor.
Eeference was made in argument to allegеd irregularities in the proceedings in the Juvenile Court. There is nothing in the record to support the suggestion.
We recognize the rule that a judgment of a' court of limited jurisdiсtion must.carry on its face the
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jurisdictional facts supporting it, as set out in Juvenile Court of Shelby County v. State,
The record fails to show that the Juvenile Court had thereafter set aside, changed or modified its order, as it might do under Codе Sections 10288 and 10291, as to either a “dependent” or “delinquent” child.
Hence, we must presume there was no such showing made before the Chancellor.
We acсordingly overrule all assignments of error and affirm the decree of the Chancellor at costs of petitioner. A decree will he entered here accordingly.