Abbott v. Abbott

• Decision Date: 04 March 1947
• Citation: 304 Ky. 167
• Parties: Abbott v. Abbott.
• Court: United States State Supreme Court — District of Kentucky

304 Ky. 167

Abbott v. Abbott.

Court of Appeals of Kentucky.

March 4, 1947.

1. Divorce. — An Indiana court's order, awarding divorced parents' minor daughters' custody to husband in proceedings wherein both parents, living with such children in Indiana, were before court under due process, rather than same court's later order, awarding custody to mother, without notice to father, after he returned

with children to his former home in Kentucky, was entitled to full faith and credit in habeas corpus proceedings, subsequently brought by mother in Kentucky court to recover children's custody under such later order. U.S.C.A. Const. art. 4, sec. 1.

2. Divorce. — An Indiana court, which awarded divorced husband custody of spouses' minor daughters while both spouses and children resided in Indiana, had no jurisdiction to award children's custody to mother by later order when children were domiciled with father in Kentucky, and such order, entered without notice, to father, was void.

3. Domicile. — Minor children's domicile follows that of their natural parent with whom they are living.

Appeal from Wayne County Court.

Duncan & Duncan for appellant.

J.M. Kennedy for appellee.

Before S.E. Anderson, Judge.

OPINION OF THE COURT BY JUDGE SILER.

Affirming.

The petition of Lena Abbott, appellant, for habeas corpus writ against her former husband, Lowell Abbott, appellee, having been dismissed by final order of Wayne County Court, appellant thereupon prosecuted this appeal under provisions of section 429-1, Ky. Criminal Code of Practice as extended by Acts of 1940, c. 93, sec. 2.

Appellant's petition sought custody of two little girls, ages 5 and 2, children of the disrupted marriage of these parties, on the basis of the latest order of a court of the State of Indiana, which order awarded appellant the custody of these children as of December 13, 1946. And so her contention on this appeal is that the Wayne County Court committed reversible error in refusing to give full faith and credit to the adjudication of the court in Indiana, in refusing to grant her the custody of these children on the basis stated and in accordance with her petition.

These parties originally lived in Wayne County, Kentucky, but they subsequently moved to Indiana for employment. On February 7, 1945, appellant divorced appellee in Indiana on the ground of cruel treatment resulting from appellee's association with another woman. That divorce judgment gave appellant custody of these children, together with an award of $15 per week for their support. She had some difficulties in enforcing that award. On July 12, 1946, after appellee had sought, in that same Indiana court, custody of these children for himself on the ground that appellant was an unfit custodian of the children, was herself associating in her home with men of bad repute and with intoxicated men, an agreed order was then entered in the Indiana court awarding custody of these children to appellee and relieving him from further payments to appellant for their support. Sometime after that date of July 12, 1946, appellee, together with the two children, returned to his former home in Wayne County, Kentucky. Although this was done without appellant's knowledge, yet it was not done in violation of any order of the Indiana court. Thereafter, appellant herself came to Kentucky to see the children, but having had some difficulty in doing so, she then returned to that same Indiana court and there procured, without any notice to appellee, an order awarding, on December 13, 1946, custody of these children back again to appellant on the ground of appellee's neglect of the children.

Appellee pled, in the present proceedings, that appellant is an unfit person to have custody of these children and that she is now living in adultery with another man, who came to Kentucky with her and who was and is personally associated with her in the prosecution of these proceedings.

Under all the conditions set out above, it may readily be assumed that the basic rights, decencies and equities of these parties are not all accrued on one side and excluded from the other side. Moreover, while one party is the mother of these children, yet the other party is their father.

Accordingly, we now look fundamentally to the law as it appears to be applicable to this case. Appellant has called our attention to that clause of the Constitution of the United States requiring full faith and...