Anderson v. May

• Decision Date: 11 January 1952
• Citation: 107 N.E.2d 358,91 Ohio App. 557
• Parties: , 62 Ohio Law Abs. 324, 48 O.O. 132 ANDERSON v. MAY.
• Court: Ohio Court of Appeals

Page 557

91 Ohio App. 557

107 N.E.2d 358, 62 Ohio Law Abs. 324, 48 O.O. 132

ANDERSON v. MAY.

Court of Appeals of Ohio, Columbiana County.

Jan. 11, 1952.

Probable Jurisdiction Noted Oct. 13, 1952.

J. L. MacDonald, Lisbon, for plaintiff-appellee.

F. W. Springer, East Palestine, Ralph Atkinson, Attorney at Law, Salem, for defendant-appellant.

GRIFFITH, Judge.

The appellant, Leona Anderson May, is seeking the reversal of the judgment of the Probate Court of Columbiana County, Ohio, entered on the 21st day of September, 1951. That Court allowed a writ of Habeas Corpus ordering the three minor children of Leona Anderson May and Owen Anderson, released to the custody of the father.

The Habeas Corpus proceeding is based upon a decree of a county court of Waukesha County, Wisconsin, wherein the custody and control of the children was awarded to the father, the relator in this case. The appeal was filed on questions of law and fact, but it has been submitted to this Court by counsel upon questions of law only, it appearing that the action is not a chancery case. The following facts were stipulated:

'That the defendant, Leona Anderson May, is a native of the State of Wisconsin and that the plaintiff and defendant were married in the State of Wisconsin and were residents of and domiciled in that state up to the latter part of the month of December, 1946, at which time the defendant left the State of Wisconsin with the aforesaid children and came to the State of Ohio; that the said children which are the subject of this action in Habeas Corpus, to-wit: Ronald Anderson, Sandra Anderson, and James Anderson, were born in the State of Wisconsin and at all times resided in that State with their parents, plaintiff and defendant, up until the latter part of December, 1946, at which time the defendant brought them into the State of Ohio; that the plaintiff, Owen Anderson, at all times has been and is now a resident of and domiciled at Waukesha County in the State of Wisconsin.

'That said defendant, Leona Anderson May established a separate domicile in the State of Ohio the latter part of December, 1946, and has ever since that time been domiciled in Lisbon, Columbiana County, Ohio.

'That on February 5, 1947, the plaintiff herein was granted a divorce in the County Court of Waukesha, State of Wisconsin. That at the time said divorce was granted, and at the time the petition for said divorce was filed as well as at all other times in between, the defendant, Leona Anderson May, was in Lisbon, Columbiana County, Ohio, and had with her at all said times the three minor children aforesaid, Ronald Anderson, Sandra Anderson and James Anderson.

'That the only service made on the defendant in connection with said divorce proceedings, was that made by the Sheriff of Columbiana County, Ohio, in which he personally handed the defendant a copy of the summons from Waukesha County, Wisconsin, and a copy of the divorce petition filed in the County Court of said Waukesha County, Wisconsin. That the defendant never entered her appearance in the County Court of Waukesha County, State of Wisconsin and filed no waiver, answer or demurrer therein. That the plaintiff obtained a decree of divorce, which among other things, adjudged and decreed that the care, custody, management and education of the minor children of the parties was awarded to the plaintiff subject to the right of the defendant to visit said children at any and all reasonable times. That said decree was entered by default in the absence of any appearance by the defendant.

'That thereafter the plaintiff came to Lisbon, Columbiana County, Ohio, and, accompanied by a police officer of the Village of Lisbon, Ohio, demanded and obtained the aforesaid minor children from the defendant. That the plaintiff has retained the custody of said minor children since February of 1947, having taken them back with him to Waukesha County, Wisconsin.

'That no further legal proceedings of record have been filed in said divorce case since the aforesaid divorce decree was entered.

'That on July 1, 1951, the plaintiff brought the aforesaid children with him on a visit to Columbiana County, Ohio, and voluntarily permitted the children to go on a visit for a limited period of time to their mother's, the defendant herein. That the mother, the said defendant, has refused to surrender said children to the plaintiff, and the plaintiff has filed this action to recover the possession and custody of said children.'

Testimony of Mrs. May and Mr. Anderson was taken and so far as the issues in this case are concerned, that is all the record that is pertinent to the solution of the instant problem. The conduct of the father and the mother of the children following the Probate Court's announcement of its decision, reprehensible as that conduct may be on the part of each, has no bearing on the decision of this case.

The testimony of the father and mother bears directly upon the conditions under which Mrs. May took the children from Wisconsin to Ohio.

Mr. Anderson testified:

'A I agreed that she could take them with her after arguing the statement pro and con she could take them with her. And if her mind was made up, she could settle things at home. That was the understanding I had when she left.

'Q Did she say she would bring the children back? A She agreed to it when she left.

'Q When you had this telephone conversation with her on New Year's Day, what was said? A The only thing I can remember is, 'Owen, I'm not coming back.' I called her up and asked her to bring the children back. I asked them all to come back.'

Record, pages 11 and 12.

Mrs. May testified that at the time she left Wisconsin the children's ages were 8 years, 5 years, and 18 months.

'Q What was the purpose in coming to Ohio? A He told me to get away by myself to think it over or what I wanted to do. Either come back to live or separate.

'Q When you left Wisconsin, what was said about the children? A Nothing was said. He said it was up to the Court. He said he would never separate the three of them.

'Q Was there anything said about bringing the children back to Wisconsin? A Nothing was said.

'Q What was your understanding? A To come here to think it over and I decided to stay.

'Q What was your understanding about the children? A There was no understanding. All I know was that I had them with me. When the papers were served I asked the attorneys what to do.

'Q At the time you left Wisconsin, had you made up your mind that you would not come back to Wisconsin? A At the time I left I really didn't know what I was going to do.'

From the record before us, it is apparent that Leona Anderson May was a native of Waukesha, Wisconsin that she and Owen Anderson were married in the middle thirties and took up residence in Waukesha where they lived their entire married life. Their domicil and permanent home, freely chosen by both, was fixed in Waukesha up to December 26, 1946; that on December 26, 1946, Leona Anderson May left Waukesha with the three children and came directly to Lisbon, Ohio, where she established her domicil. That she brought the children to Lisbon with the knowledge and consent of the father to think over her domestic differences with her husband, and decide whether she would longer live with him. That on New Year's Day she told her husband she was not coming back. That the father thereupon, requested the return of the children as he had stated to the mother that the matter of their custody 'was up to the Court.'

That on January 6, 1947, Owen Anderson filed his action in Waukesha for divorce and custody of the children and said divorce was granted to him on February 5, 1947, which decree was made in the absence of the mother and the children from the State of Wisconsin and without service of jurisdiction over them other than the substituted service in the divorce case.

The Court awarded custody of the children to the father. The only service made on Leona Anderson May in the divorce case was through the Sheriff of Columbiana County, Ohio, who served her with summons and a copy of the petition. That no personal service of any nature was made upon Leona Anderson May in the State of Wisconsin. That neither she nor the children were in Wisconsin...