Application of Habeck, 9470

• Decision Date: 28 March 1955
• Docket Number: No. 9470,9470
• Citation: 69 N.W.2d 353,75 S.D. 535
• Parties: Application of Muriel HABECK and Mrs. Charles B. McGuire for a Writ of Habeas Corpus.
• Court: South Dakota Supreme Court

Page 353

69 N.W.2d 353

75 S.D. 535

Application of Muriel HABECK and Mrs. Charles B. McGuire for

a Writ of Habeas Corpus.

No. 9470.

Supreme Court of South Dakota.

March 28, 1955.

Morgan & Fuller, Mitchell, Whiting, Lynn & Freiberg, Rapid City, for appellants.

Hendricksen & Morrison, Richard B. Denu, Rapid City, for respondents.

ROBERTS, Judge.

This is a proceeding in habeas corpus instituted in the Circuit Court of Pennington County to obtain the custody of the three children, aged six, seven and nine, of Muriel Habeck and her former husband, Orville Habeck. The proceeding was commenced by the mother and the paternal grandmother, Mrs. Charles B. McGuire. From a judgment awarding custody of the children to Frank and Margaret Wolff, Rapid City, South Dakota, applicants have appealed.

Muriel Habeck commenced an action for a divorce against Orville Habeck in the District Court of Cass County, North Dakota. On March 14, 1951, a decree was duly entered in that court granting to the plaintiff a divorce and awarding to her custody of their three children. On December 10, 1952, on motion of the defendant in the divorce action, the court finding that the mother was not a fit and proper person to have the care and control of the children awarded their custody to the father. On June 29, 1953, Muriel Habeck made application for modification of the decree insofar as it related to the custody and support of the minor children. Service of an order to show cause in the proceeding for modification was had on defendant at Chamberlain, South Dakota. He was not present at the hearing and was not represented. However, his counsel filed a special appearance for the purpose of objecting to the court's jurisdiction. On July 23, 1953, the court modified the divorce decree awarding custody of the children to the paternal grandmother, Mrs. Charles B. McGuire, residing in Fargo, North Dakota.

On October 9, 1953, Mrs. Habeck instituted an action in the Circuit Court of Douglas County, South Dakota, against her former husband for the enforcement of the North Dakota decree awarding custody to the paternal grandmother and obtained an order enjoining the removal of the children from the jurisdiction of the court. Defendant father thereupon filed an answer alleging invalidity of the modified decree of July 23, 1953, and also a cross-complaint praying that the court permit the children to remain in the care of Frank and Margaret Wolff. The cross-complaint was based upon the contentions that Mrs. McGuire to whom custody had been awarded was not a fit and proper person to have custody and that the Wolffs, having for the past nine months had the care and control of the children and having instituted proceedings for their adoption, would provide them with a normal home life. The application of the Wolffs to intervene was denied on the ground that the same having been made after trial was not timely. The court heard the evidence and expressly found that Mrs. McGuire is a fit and proper person to have custody. The court further found that no evidence was offered to disprove the findings of the North Dakota court or that there had been a change in circumstances following the entry of the modified decree in that case and gave full recognition to such decree and ordered that the children be surrendered by Frank and Margaret Wolff in whose care they were placed by the father and delivered into the custody of Mrs. McGuire.

The application for the writ of habeas corpus filed in the instant proceeding on March 23, 1954, sets forth the proceedings and decree in the Circuit Court of Douglas County as establishing the right of Mrs. McGuire to custody of the children and alleges the illegality of their restraint. Writ of habeas corpus was issued and served upon Frank and Margaret Wolff. Although no return was filed, evidence was received as to the respective claims of the parties. The court found that 'Mrs. Charles B. McGuire is a woman of 57 years of age, of good qualities and character and adequate financial means and property'; that when the children were placed in the care of the Wolffs in March of 1953 their condition 'indicated a previous lack of adequate physical care, discipline, training, supervision and guidance'; and that the respondents are persons 'of good qualities and character, with adequate financial means and property' and are 'providing a good home for the said three children and are properly raising, training and educating them to become good citizens and are providing good Christian training for them.' The court concluded that the best interest and welfare of the children demand that they remain with the Wolffs and that custody be awarded to them.

Appellants contend (1) that the trial court was without authority to proceed to a determination of the rights of the respondents in the absence of a return; (2) that the only question before the court in the instant proceeding was the legality of the restraint of the children by the respondents inasmuch as their best interest and welfare had been determined and their custody adjudicated by the Circuit Court of Douglas County, a court of concurrent jurisdiction; and (3) that as between a grandparent and third persons, adversely claiming custody of children, the grandparent is entitled to preference.

The purpose of an application for writ of habeas corpus is to secure the issuance of the writ and it ceases to function when the writ has issued. The writ requires a return and it may be controverted by denial or by allegations of other facts. SDC 37.5504. The return is the first and principal pleading and corresponds to a complaint in a civil action. 39 C.J.S., Habeas Corpus, Sec. 88. The respondents should have filed a return, but the irregularity in the pleadings or proceeding in this regard has not affected the substantial rights of the parties. We have concluded to treat the record as though a return to the writ had been filed setting forth the claims that the award of the custody of the children as between the parties in prior decrees was not binding upon the respondents, not parties thereto, and that the best interest and welfare of the children required that their care and control be continued in the respondents.

The North Dakota court had jurisdiction in the divorce action both of the parties and of the children of the marriage. They were all domiciled and present in that state when the action was commenced and defendant husband was represented therein by counsel. Where jurisdiction to grant a divorce and award custody of the minor children of the marriage once attaches, that jurisdiction, under a statute in that state, is a continuing one and the court may vacate or modify a decree with reference to custody as existing conditions may demand. See Hedman v. Hedman, N.D., 62 N.W.2d 223, and cases cited. The removal of the children from the state by the father to whom they were awarded did not deprive the District Court of Cass County of jurisdiction to exercise the reserved and continuing power regarding their custody. 17 Am.Jur., Divorce and Separation, Sec. 686; Annotation 9 A.L.R.2d 434. The special appearance filed by the father specified no grounds for his objection to the jurisdiction of the court. Insofar as it appears from the record, the father retained his domicile in North Dakota. In case of a divorce or separation, the domicile of a minor child is that of the parent to whose custody it has been legally awarded. The children were residing with the Wolffs under an arrangement between them and the father. Their custody in legal effect continued in the father and such being the case their domicile was not changed and was that of the father at the time of the modification of the divorce decree awarding custody to the paternal grandmother. May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221, cited by respondents in support of the contention that the modified decree is ineffective in this state, is distinguishable. There a father instituted a suit for a divorce and the only service of process upon the mother was the delivery to her in another state wherein she was domiciled of a copy of summons and petition. The mother entered no appearance and took no part in the proceeding. Because of the absence of personal service, the decree insofar as it awarded custody of their children to the father was not entitled to extra-territorial recognition.

It is true as respondents contend that the paramount and controlling issue in a contest concerning the custody of minor children is their best interest and welfare. Tompkins v. Lutheran Welfare Soc. of South Dakota, 74 S.D. 286, 52 N.W.2d 99; Sweeney v. Joneson, S.D., 63 N.W.2d 249. It is well settled, however, that after a court has heard evidence with reference to the custody of minor children and ruled upon the question the jurisdiction of the court cannot again be invoked to inquire into the same or other facts existing at the time or prior to the former decree. The rule is that there must be a change of circumstances arising after entry of the former decree to justify a modification. Matthews v. Matthews, 71 S.D. 115, 22 N.W.2d 27. Under the doctrine of comity prevailing among the states the same rule of finality applies; the provisions of a divorce decree in another state awarding custody, except as fraud or want of jurisdiction may affect their validity, are to be given full effect under the circumstances existing at the time of the entry of the decree. See Annotations in 20 A.L.R. 815; 72 A.L.R. 441; 116 A.L.R. 1299; and 160 A.L.R. 400. The Circuit Court of Douglas County indicated by its findings that as between the father and mother the facts upon which the North Dakota court based its modified decree awarding custody to Mrs. McGuire were res adjudicata and properly concluded that in the absence of a change of circumstances affecting the welfare of the children such decree was entitled to full faith and credit in...