Bartlett v. Bartlett

• Citation: 175 Or. 215,152 P.2d 402
• Parties: BARTLETT <I>v.</I> BARTLETT ET AL.
• Decision Date: 17 October 1944
• Court: Supreme Court of Oregon

175 Or. 215

152 P.2d 402

BARTLETT

v. BARTLETT ET AL.

Supreme Court of Oregon.

Argued September 13, 1944.

Modified October 17, 1944.

Evidence

1. Supreme Court took judicial notice of Idaho statute pertaining to divorce.

Divorce

2. Where minor child, who was awarded to custody of mother by a prior Idaho divorce decree which, under Idaho law, was subject to modification, was domiciled with mother in Oregon and father's petition for habeas corpus and mother's answer raised issues as to respective present fitness of both parents as custodians of child, requirements of full faith and credit and of comity did not apply and Oregon court was authorized to exercise jurisdiction.

Habeas corpus

3. Where there was no evidence in habeas corpus proceeding of mother's want of fitness to have custody, five-year-old child was properly awarded to custody of mother.

Parent and child

4. The father of a minor child has a prima facie right to visit child and a statutory duty enforced by criminal sanctions to support it.

Habeas corpus

5. The special proceedings for a writ of habeas corpus when employed to determine legality of imprisonment or restraint of a person are of a legal, as distinguished from an equitable, nature, and appeals are taken with like effect as in an action, and in such a proceeding judgment of court is ordinarily limited to discharge or remand of prisoner from custody.

Habeas corpus

6. The employment of writ of habeas corpus in cases of child's custody is independent of statute and rests upon inherent power of a court of equity exercising power of state parens patriae for protection of infant wards of the state.

Habeas corpus

7. In habeas corpus proceedings to determine child's custody, the court is not bound by strict rules of law and exercises a wide discretion wherein the paramount consideration is the welfare of the child, and in a proper case it may take child from custody of its parents or guardians or from persons to whom legal custody has been previously awarded.

Habeas corpus

8. In habeas corpus proceedings to determine child's custody, the court is not limited to mere award of legal custody and, having granted custody to one parent, has power to provide for rights of visitation by other parent.

Infants

9. Under the inherent power of a court of equity exercising power of state parens patriae for protection of infant wards of state, equity may, without invoking writ of habeas corpus, exercise its power to protect infants and determine their custody, and in so doing court may provide for support of infant.

Infants

10. An infant becomes a ward of the court, so as to authorize the court to act for best interest of infant as parens patriae to provide for its custody and support, whenever infant is brought before court for any purpose.

Habeas corpus

11. In habeas corpus proceeding for child custody, circuit court in the exercise of its inherent equitable powers as parens patriae and in exercise of its juvenile court powers is authorized, upon awarding custody of child to mother, to order father to support child, notwithstanding that mother originally obtained custody under a foreign divorce decree which made no order against father.

Divorce

12. A father's duty to support a child is not terminated by divorce.

Infants

13. The creation of statutory regulations as to custody and care of infants does not affect jurisdiction of equity over infants, but may sometimes form a basis for equitable relief.

Habeas corpus

14. Where power is vested in same court and judge to employ multiple procedures for protection of infant, the fact that a petition in habeas corpus was employed to initiate inquiry does not require that court close its eyes to its own inherent power when pleadings and evidence raise issues, which, when differently stated, warrant exercise of such power to protect infant.

Habeas corpus

15. When a writ of habeas corpus is issued in ancient form only, and when issues made by return relate only to legality of process whereby child has been committed or under which it is held, court will follow summary procedure upon analogy of statutory provisions of habeas corpus ad subjiciendum and, if commitment is fair upon its face, court will dismiss the writ.

Habeas corpus

16. In habeas corpus proceedings for child custody, where issues are presented by petition and return or answer beyond merely the legality of process whereby child has been committed or under which it is held, full inherent power of equity is available, not only to award custody, but also to determine collateral matters concerning support under rule that equity upon taking jurisdiction for one purpose will retain jurisdiction to do complete justice.

Habeas corpus

17. In father's habeas corpus proceeding to obtain custody of child from mother, wherein court remanded custody to mother, court should have made a direct order for father to support child rather than making an order conditional upon father's right of visitation.

                  See 116 A.L.R. 699; 25 Am. Jur. 205
                  27 C.J.S., Divorce, § 329
                

Before BAILEY, Chief Justice, BELT, KELLY, BRAND and HAY, Associate Justices.

Appeal from Circuit Court, Clackamas County.

EARL C. LATOURETTE, Judge.

Habeas corpus proceeding by Wilbur Forrest Bartlett against Ella May Bartlett and another to secure custody of petitioner's minor son, Forrest Ello Bartlett. From an adverse decree, petitioner appeals.

MODIFIED.

Leo Levenson, of Portland (Irvin Goodman, of Portland, on the brief), for appellant.

Glenn R. Jack, of Oregon City (Butler & Jack, of Oregon City, on the brief), for respondents.

BRAND, J.

The petitioner, Wilbur Forrest Bartlett, hereinafter called the plaintiff, brings this proceeding in habeas corpus to obtain custody of his son, Forrest Ello Bartlett, an infant. The defendant and respondent is Ella May Bartlett, the mother of said infant, to whom the child had been awarded by a decree of divorce in the state of Idaho. Vera Halstead, the mother of Ella May Bartlett, is joined as a defendant. From a decree on the merits favorable to the contention of the mother, plaintiff appeals.

Forrest Ello Bartlett, the son of plaintiff and of the defendant, is now five years of age. On July 30, 1943, at the suit of the wife, a decree of divorce was entered by the Idaho court and she was given "sole control and custody of the minor child of the parties" until said child shall become twenty-one years of age. No provision was made in the divorce decree for any right of visitation on the part of the father. Subsequently the mother and infant son took up their residence in Clackamas county, Oregon, and in October, 1943, the father, who had remarried, brought this proceeding in habeas corpus.

The petition challenges the validity of the Idaho decree, but that issue is withdrawn by plaintiff's reply wherein it is admitted that the parties were divorced and that the decree of the Idaho court is in full force and effect. The petition in habeas corpus alleges that plaintiff "as the father of said minor son, has an interest in the welfare and well-being of said minor son, and is willing and able to provide a suitable and proper home for him; and petitioner alleges that the above named Ella May Bartlett and Vera Halstead are not fit and proper persons to have the care, custody and control of said minor son." He further alleges in substance that the defendants, the mother and grandmother of the child, have failed and refused and still fail and refuse to inform the plaintiff the whereabouts of his minor son and have refused him the right and privilege of visitation and have concealed the said minor son, although plaintiff has on many occasions demanded to know the whereabouts of said son. The plaintiff alleges that he has not visited with or seen his son since October 5, 1942, and that on September 6, 1943, he called upon the defendants and demanded that they produce said child or disclose his whereabouts, which demand was refused by the defendants. He alleges that it is for the best interest of the child that plaintiff have his future custody.

The defendants in their answer set forth their residence in Clackamas county, the decree of divorce in Idaho, and allege that the plaintiff came to the defendants' home when the defendant Ella May Bartlett was ill "and threatened to steal the minor child, and threatened to run away with the minor child, and made serious threats against the defendants and against the minor child" and defendants admit that they refused to divulge the whereabouts of the child until the plaintiff agreed to contribute to the care and support of the said minor child. The defendants further allege that the plaintiff has failed and refused to contribute any sum whatever to the support of the child; has deserted the said child and placed the burden of his care upon the defendants.

Upon the issues thus presented, the cause was tried by the Clackamas county circuit court as a suit in equity. The decree provided that the custody of the minor child should remain with the mother "subject to the right of the plaintiff to visit with and have custody of said minor son for one day, semi-monthly, provided that said minor son shall be returned to his mother before darkness and, provided further, that the plaintiff shall pay to the mother for the support and maintenance of said minor son, the sum of $40 per month."

The plaintiff contends that the decree of the Idaho court awarding sole custody of the child to the wife is not binding upon the Oregon court; that the Oregon court properly took jurisdiction but erred in refusing to award to the plaintiff the custody of his son. He contends further that even if the court should ultimately determine that the mother should retain custody of the child, the decree of the Oregon court should be modified so as to further extend plaintiff's rights of visitation. He complains of the provision of the decree which merely grants plaintiff the...