Alford v. Thomas
| Decision Date | 01 October 1957 |
| Docket Number | No. 37867,37867 |
| Citation | 316 P.2d 188 |
| Parties | Viola Thomas ALFORD, Plaintiff in Error, v. Carl THOMAS, Defendant in Error. William A. Berry, County Judge of Oklahoma County, Oklahoma, and L. D. Hoyt, Attorney, Ex Latere. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. Where a proceeding is in the nature of an application for a writ of habeas corpus, a summary proceeding, the rules governing appeals will not be applied.
2. This court will disregard formalities when examining applications for writs of habeas corpus and judge the papers by the simple test of whether facts are alleged that entitle applicant to relief.
3. Parents have by nature, as well as by law, the legal right to the custody of their minor children. This right will always control the judgment of the courts, unless circumstances of great weight and importance connected with the necessary welfare of the child exist to overcome such legal right.
4. Record examined and held, that under the facts and circumstances of this case the mother is entitled to the custody of her four-year-old daughter, and a writ of habeas corpus is hereby granted to accomplish that purpose.
Action in the nature of a petition for a writ of habeas corpus by the mother of a four-year-old daughter to gain custody of said child. Writ granted.
Hulsey & Hulsey, McAlester, for petitioner.
Little & Hoyt, Oklahoma City, for respondent.
This is an action growing out of a divorce proceeding. Carl Thomas was plaintiff, and Viola Thomas was defendant. The action was filed in the Pittsburg County District Court February 7, 1955. The case also involved the care and custody of their infant child, Sharon Sue Thomas, who is now four years old.
Various motions, applications, citations and modifications were heard by the local District Judge, W. A. Lackey, among which were orders modifying previous orders relating to the care and custody of Sharon Sue. At one time the father was given custody of the child; at another, September 19, 1956, the mother was awarded the care and custody of the child from 6:00 p. m. Sunday of each week until the following Saturday at 9:00 a. m., provided that the mother conducted herself properly and furnished a suitable place for said child; that during the period the child was with her mother the father was to have the right to visit the child at reasonable times and places; that during the time the child was with the father he was to see that she attended Sunday School, if physically able. The father was ordered to allot approximately $30 per month of his Social Security to the benefit of the child. This order further provided that the child should not be removed from Pittsburg County, and each parent was restrained from doing so.
On September 27, 1956, the father filed a motion to modify the last previous order alleging failure of the mother to comply with the terms thereof in that she had, among other things, taken the child out of the county to parts unknown. Upon the alleged failure to comply with the court's order, the mother was cited for contempt. The citation was served upon the mother, Viola Thomas, now Alford, on the 17th day of November, 1956, (by the sheriff of Pittsburg County) in person, and the sheriff took the child, Sharon Sue Thomas, from her mother at that time and delivered her to plaintiff. The cause came on for hearing on the 21st day of November, 1956, and Judge Lackey, upon hearing the cause as to the care and custody of Sharon Sue, entered an order modifying all previous orders and granted the father the exclusive care, custody, education and support of the child and restrained him from removing her from the state. It was further ordered that the mother should have the right to visit the child between the hours of two and four p. m. on Sunday of each week, and the defendant (mother) was restrained from molesting the plaintiff or attempting to deprive him of the custody of the child; and provided further that if the plaintiff (father) should attempt to remove the child from the City of McAlester, Oklahoma, he was to notify the defendant (mother) or her attorney of his location and whereabouts so that defendant (the mother) would know where to go to see the child.
Thereafter defendant filed an application for citation for contempt of court and motion to modify the above order as to the custody of Sharon Sue, alleging, among other things, the unfitness of the father to have her care and custody, and that he had violated the previously mentioned order by removing her from the City of McAlester without notifying the defendant or her attorney of the child's whereabouts so that she could visit her; that when inquiry was made as to the whereabouts of the child, the attorney for plaintiff informed defendant's attorneys that plaintiff had taken the child to Oklahoma City and turned her over to the county judge of that county for secret adoption; that on the 7th day of March, 1957, upon this application, Judge Lackey issued an order requiring plaintiff to appear before him and show cause, if any he had, why he should not be held for trial on complaint of indirect contempt of court, and to show cause, if any, why the order giving the care and custody of the child to him should not be modified so as to give the exclusive custody of said child to the defendant, ordering the plaintiff to appear before the court on March 14, 1957, at 10:00 a. m.
The plaintiff, Carl Thomas, filed a response in which he denied generally all the defendant's allegations, but admitted that he had been given the exclusive care of their child with certain visiting privileges of the mother. He denied that he had ever wilfully violated the order of the court, but stated that at the time of the making of the order of November 19, 1956, his attorney stated in open court in the presence of the defendant and her attorney that under the terms of said order plaintiff had the right to adopt said child to other parties, and that he would attempt to see that same would be done so that the child could have a suitable home; that thereafter attorney for defendant told plaintiff that it would be the best thing in the world for the child that she be placed in a good home; that if he himself were not in such financial straits that he would walk out of the case; that acting upon the advice of his own attorney and defendant's attorney, plaintiff did sign consent to the adoption of said child and delivered the child to a man whom he understood to be a Baptist minister at Oklahoma City and signed consent to the adoption prepared by an Oklahoma City attorney,...
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