Tull v. Tull

Shehan, J., delivered the opinion of the Court. This appeal is from an order of the Circuit Court for Somerset County, dated September 16th, 1936, passed in a habeas corpus proceeding relating to the custody of Alonzo Eugene Tull, infant son of the parties. The petition for the writ was filed by Dorothy Gale Tull, appellee, against her husband, Honiss A. Tull, the appellant, under section 21, article 42, of the Code. After a hearing the following order was passed: “That further jurisdiction with respect to the custody and control of Alonzo Eugene Tull, infant son of Honiss A. Tull and Dorothy Gale Tull be, and the same is hereby relinquished by this Court and transferred unto the Circuit Court for Somerset County, Maryland, in Equity, in case No. 4826 Chancery, ²¹⁵ provided, however, that such child shall remain in the custody of the said Honiss A. Tull until the final order of the Circuit Court for Somerset County, Maryland, in Equity, with respect to the custody of such child, shall be entered in Case No. 4826 Chancery.” Subsequent to filing this habeas corpus proceeding, but before the above order was passed, there was filed in the Circuit Court for Somerset County, in equity, a. suit by Dorothy Gale Tull against her husband for a divorce a mensa et thoro and for the custody and control of their child.

Authority to pass this order is the principal question here presented, but the appellee also contends that the order is only interlocutory, and does not finally determine any of the matters in issue and is within the discretion of the court and, therefore, no appeal lies from it. The question is whether the court, having acquired jurisdiction of the subject matter and of the parties, under the habeas corpus proceeding, may relinquish it and transfer it to the equity side of the court, first having temporarily disposed of the custody of the child. As to the custody and control of infants, both of these courts have jurisdiction. The Code, art. 42, sec. 21, relates to the custody and control of infants in habeas corpus proceedings, and article 16, section 80, of the Code, confers authority on courts of equity, independent of proceedings for divorce, to dispose of such custody and control, and article 16, section 89, confers this power in connection with divorce suits between the parents.

It seems to be the intent and purpose of the Legislature to confer authority upon the court in habeas corpus proceedings coextensive with that of courts of equity, for in article 42, section 21, it is provided that the court has power and authority, “in as ample a manner as a court of chancery, or judge of a court of chancery upon bill or petition, and may pass such other and further orders in relation to his care and custody as may be deemed just and beneficial.” In view of this concurrence of jurisdiction and the right of appeal from both courts, adequate ²¹⁶ remedies are provided and may be asserted whenever •the circumstances, or changed conditions relating to the welfare of the child, may require it. Courts of equity have jurisdiction over the marital status of the parties, with power to decree divorces, and this very power, when exercised, may be an important factor in determining and awarding the custody of children. There the entire matter of divorce, custody, control, maintenance, and support, would be in the same jurisdiction and, without multiplicity of suits and unnecessary delays, could be expeditiously disposed of, and the future of the child controlled and directed. This jurisdiction is defined and conferred by statute and cannot be enlarged or abridged by the order of the law court under the habeas corpus proceedings.

It does not appear that the order appealed from transferred to or conferred upon the court of chancery jurisdiction that it did not already possess, and the order, in this respect, was not effective. Permitting the child to remain with the father, where it was then and had been, until further orders, was obviously the proper course. The effect of the order, whatever its verbiage, is only to continue the status quo during the pendency of the suit in equity and to provide for the custody of the child during that period, by awarding it to the appellant, and the order only has the effect of suspending further proceedings in the habeas corpus proceeding. The order in the habeas corpus proceeding awarded the custody of the child to its father, and from it this appeal is taken, under ■ article 5, section 31, of the Code (as amended by Acts 1927, c. 593), which provides that an appeal may be taken “from any order of any Court in this State the effect of which is to deprive any parent, grandparent, or natural guardian of such child of its care and