52 So. 735 | Ala. | 1910
Appellant and appellee are husband and Avife. Appellee filed her petition to have decreed to her the custody and control of William Calhoun Boyal, a minor son of the parties. The petition proceeds under sections 4503 and 4504 of the Code of 1907. Upon the filing of the sworn petition and the execution of the bond required, the Honorable H. A. Pearce, judge of the Twelfth judicial circuit, ordered a preliminary injunction commanding and enjoining defendant not to interfere with or disturb petitioner’s custody and control of tiie child pending a final hearing on the petition. After filing his SAvorn ansAver circumstantially denying the allegations of the petition, defendant moved a dissolution of the injunction on the ground that there was no equity in the petition, and on the denials of the answer. This
No serious question is raised against the equity of the petition except that it fails to show a voluntary separation of the parties, husband and wife. The petition distinctly alleges a voluntary separation. As bearing upon the jurisdictional fact here involved, it appears that in the latter half of the year 1906 the parties lived in Virginia. Mrs. Royal had filed a bill for divorce and for the custody of her child in one of the courts of that state, and had obtained an order enjoining defendant not to interfere with her custody and control of her son. The grounds stated in that bill are not repeated here. Petitioner, however, does complain that the defendant is of a jealous disposition, harsh and overbearing in his treatment of her. Defendant recriminates. Whatever may have been or may now be the merits of the controversy between the parties, it appears that shortly after the bill was filed in the Virginia court they entered into an agreement in writing as a result of which that bill was withdrawn. That agreement recited the filing of the bill, the desire of both parties to avoid publicity and to settle their domestic difficulties, and their conclusion that the welfare of the child was the consideration of first importance and would be best subserved by the agreement. It provided that the parties should live apart for a period of 12 months, that the care, custody, control, and education of the child during the 12 months should be with the mother, and contained other sipulations which need not be recited. It concluded: “If, after the expiration-of twelve months from this date, the parties are persuaded that they can live amicably together then the provisions of this contract are in every particular to cease and determine, and the rights of
There is no invariable rule which requires the court of chancery to dissolve an injunction upon the denials of the answer. The situation of the parties and the probable or possible consequences of the order to be made must be considered. Petitioner lives in this state among friends and relatives where she lived before her marriage. The influences surrounding the child are conceded to be good. The defendant lives in the state of Virginia, and if, the temporary injunction being dissolved, he should acquire possession of the child and succeed in getting him beyond the boundaries of the state, the conrt will have lost its power to control his actions. The jurisdiction of the court ought to be preserved. It is charged that defendant at one time re
Accordingly, the chancellor’s decree will be affirmed, and the cause remanded for final disposition upon the pleading and the proof as it may appear.
Affirmed.