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12/06/73 EX PARTE HONORABLE JAMES D. BUCK AS JUDGE

December 6, 1973

EX PARTE THE HONORABLE JAMES D. BUCK, AS JUDGE OF THE CIRCUIT COURT OF TUSCALOOSA COUNTY, ALABAMA; IN RE EX PARTE BARBARA S. MCDUFFIE - PETITION FOR WRIT OF MANDAMUS TO THE HONORABLE JAMES D. BUCK, AS JUDGE OF THE CIRCUIT COURT OF TUSCALOOSA COUNTY, ALABAMA


Jones, Justice, wrote the opinion.

Heflin, C.j., and Merrill, Coleman, Harwood, Bloodworth, McCALL, and Faulkner, JJ., concur.

Maddox, J., concurs specially.

The opinion of the court was delivered by: Jones

JONES, Justice.

Does a divorce-child custody action pending in one state abate a like suit in another state? *fn1 We answer in the negative and reverse and remand this cause to the Court of Civil Appeals. We agree with the trial court in overruling the respondent-wife's motion to dismiss (Plea in Abatement).

The Court of Civil Appeals in issuing the writ of mandamus stated:

"The question of jurisdiction is determinative of this case and its resolution requires consideration. Upon careful review of the facts of the case, it is shown that on June 13, when the respondent-husband filed his action in the Alabama court, the petitioner-wife had already filed an action in the California court, on April 6, and the respondent had been served personally on April 17. The question then presented is which court has jurisdiction over the case.

"The principle is well known that where two or more courts have concurrent jurisdiction, the one which first takes cognizance of the cause of the action has the exclusive right to entertain and exercise such jurisdiction to the final determination of the action and enforcement of its decrees. See 21 C.J.S. Courts § 492; Ex parte Burch, 236 Ala. 662, 184 So. 694; Clements v. Barber, 49 Ala.App. 266, 270 So.2d 815."

The opinion of the Court of Civil Appeals then concluded:

"We note also that the proceeding was prior to any formal determination by the Alabama court as to jurisdiction. As a result, at the time of adjudication of the motion now before this court, the California determination as to jurisdiction was res judicata and is entitled to Full Faith and Credit by the Alabama court. Rice v. Rice, 336 U.S. 674, 69 S.Ct. 751, 752, 93 L.Ed. 957; Ex parte Aufill, 268 Ala. 43, 104 So.2d 897 ; Stallworth v. Stallworth, 272 Ala. 449, 131 So.2d 867 ."

We disagree that the Burch and Clements "concurrent jurisdiction-abatement" doctrine is determination of this case. Nor is the "full faith and credit" *fn2 principle of Stallworth here applicable.

In Ex parte Burch, supra, this Court was confronted with a conflict between the Circuit Court of Walker County, Alabama, and the County Court of Walker County. The prior pendency of the wife's divorce suit in the Circuit Court was considered sufficient basis to prohibit the County Court of Walker County from proceeding with the trial of a subsequent suit for divorce filed in that court by the husband. The conflict in that case was intrastate.

Likewise, in the case of Clements v. Barber, supra, the Court of Civil Appeals was confronted with an intrastate conflict. The prior pendency of an action to fix custody of a minor in the Family Court of Jefferson County was considered sufficient to prohibit the Circuit Court of Jefferson County, Alabama, from acting upon an action to determine the custody of such child.

This Court has long been committed to the proposition that the pendency of a suit upon the same cause of action in another state is no cause of abatement of a suit instituted in this state. In Humphries v. Dawson, 38 Ala. 199, this Court stated:

"If there be any reason which renders this principle [concurrent jurisdiction] inapplicable in the present case, a fatal objection to the plea is found in the other principle, that the pendency of a suit in another State is no cause of abatement of a suit instituted in this State."

This holding is in accord with the weight of authority and is equally applicable to actions for divorce. See 24 Am.Jur.2d, Divorce and Separation, § 188; 27A C.J.S. Divorce § 99; Cox v. Cox, 234 Miss. 885, 108 So.2d 422.

The opinion of the Court of Civil Appeals takes note of the fact that the question of jurisdiction of that court was argued and resolved in California on July 27, 1973. The California Court determined that it did have jurisdiction of the cause and such determination was made after the husband (respondent there) had filed a Motion to Dismiss based on lack of jurisdiction and had personally appeared before that court to so argue. The Court of Civil Appeals then concludes that the California determination as to jurisdiction is res judicata and entitled to Full Faith and Credit by the Alabama Court, citing our case of Ex parte Aufill, supra, and Stallworth v. Stallworth, supra. This Conclusion does not militate against the result which we reach here. The fact that the California court ...


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