Barnes v. Morash

• Decision Date: 03 April 1953
• Docket Number: No. 33203,33203
• Citation: Barnes v. Morash, 156 Neb. 721, 57 N.W.2d 783 (Neb. 1953)
• Parties: BARNES v. MORASH.
• Court: Nebraska Supreme Court

Page 783

57 N.W.2d 783

156 Neb. 721

BARNES v. MORASH.

No. 33203.

Supreme Court of Nebraska.

April 3, 1953.

Syllabus by the Court.

1. In general, the writ of habeas corpus has been extended to, and may be used in, controversies regarding the custody of infants. Such proceedings are governed by considerations of expediency and equity, and should not be bound by technical rules of practice.

2. A divorce decree is not conclusive in a subsequent habeas corpus proceeding where the parties to the two proceedings are not the same.

3. In a habeas corpus action for the custody of an infant of tender years, the court will consider the best interests of the child, and will make such order for its custody as will be for its welfare, without reference to the wishes of the parties.

4. The natural rights of the parents are of important consideration and, in the absence of special circumstances, the child or children should be awarded to the parent, or parents, as against more distant relatives or third persons.

5. Custody of a child of tender years should be awarded the mother, unless it is shown that she is unsuitable or unfit to have such custody, or through some peculiar circumstance is unable to furnish a good home.

6. The right of a moter to the custody of her child is not lost beyond recall by an act of relinquishment, if such be the fact, performed under circumstances of temporary distress or discouragement.

7. Where the evidence on material questions of fact in a case such as the instant case is in irreconcilable conflict, this court will, in determining the weight of the evidence, consider the fact that the trial court observed the witnesses and their manner of testifying, and must have accepted one version of the facts rather than the opposite.

Maupin & Dent, North Platte, for appellant.

Beatty, Clarke, Murphy & Morgan, North Platte, for appellee.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE and BOSLAUGH, JJ.

MESSMORE, Justice.

This is a habeas corpus action brought by Delores Barnes, formerly Delores Brennan, as plaintiff, in the district court for Lincoln County to obtain the custody of a minor daughter, Delores Jean Brennan, sometimes referred to as Delores Jeanne Brennan, from the defendant Mabel Morash, the paternal grandmother of the child. The basis of the action is that the minor child is unlawfully and forcibly detained by the defendant in violation of a decree of divorce rendered in the district court for Custer County. The plaintiff was granted a decree of divorce from Donald Brennan on February 7, 1950. The decree found the plaintiff to be a fit and proper person to have the care, control, and custody of the minor child.

The defendant's defense may be summarized as follows: That where an action for a divorce is predicated on constructive service, the court has no power to enter a decree determining anything other than the status of the parties, and any award of custody of the child under such a decree is void and unenforceable; that the plaintiff abandoned the minor child by her acts and conduct for a period of 3 years, from May 1947 until April 1950; and that the best interests and general welfare of the child will be served by not changing its custody or restoring its custody to the plaintiff.

The trial court heard the case on its merits and thereafter rendered a decree finding generally in favor of the plaintiff and against the defendant, and awarded the custody of the child to its mother, Delores Brennan, now Delores Barnes. Defendant filed a motion for new trial which was overruled. The defendant appeals.

At the outset, the appellee raises the point that the divorce obtained by her on February 7, 1950, in the district court for Custer County from Donald Brennan, wherein she was awarded the custody of their minor child Delores Jean Brennan, is conclusive, and she is entitled to judgment on the pleadings, and this alone is sufficient to award the custody of the child in this action to her, regardless of the merits of the case. She pleads such facts in her petition.

The appellant pleads that the service obtained by the appellee on her husband was constructive service, therefore the only jurisdiction vested in the trial court was to determine the status of the parties, and such court was without jurisdiction to award the custody of the child, the subject of this litigation, to the mother.

The cases of Hanson v. Hanson, 150 Neb. 337, 34 N.W.2d 388, and In re Application of Reed, 152 Neb. 819, 43 N.W.2d 161, are cited by the appellant to sustain her position.

In the Hanson case this court held [150 Neb. 337, 34 N.W.2d 389]: 'A judgment in a default divorce action affecting the custody of children, where there was no appearance by the defendant who was served by personal service in another state where she and her children are domiciled, is subject to collateral attack by habeas corpus.

'Court granting divorce decree on constructive service against nonresident defendant is without jurisdiction to fix the custody of the parties' minor children living at the time with such defendant and never within the state where the divorce proceedings were instituted.'

It will be observed that in the Hanson case the childrens' domicile was with their mother in California, as distinguished from the instant case where the child is domiciled in this state and has always resided here where the divorce was obtained, which distinguishes the Hanson case from the instant case. To like effect as the holding in the Hanson case see Kline v. Kline, 57 Iowa 386, 10 N.W. 825, 42 Am.Rep. 47.

In Weber v. Redding, 200 Ind. 448, 163 N.E. 269, 271, it is said: '* * * the weight of authority is in favor of confining the jurisdiction of the court in an action for divorce, where the defendant is a nonresident and does not appear, and process upon the defendant is by substituted service only, to a determination of the status of the parties.' This rule of law extends to children who are not within the jurisdiction of the court when the divorce is rendered, where the defendant is not a resident of the state of the seat of the court, and has been neither personally served with process nor appeared in the action.

In the case of In re Application of Reed, supra [152 Neb. 819, 43 N.W.2d 162], we held: 'A decree of divorce of a court of another jurisdiction, awarding the custody of the child of the parties to one of them, rendered while the child is in this jurisdiction, does not preclude the courts here from determining the question of the custody of the child; and in a habeas corpus proceeding brought to enforce such foreign decree, the full faith and credit clause of the Constitution is not involved.' We believe the distinction between this cited case and the instant case is obvious.

The appellee relies on the case of Matthews v. Matthews, 247 N.Y. 32, 159 N.E. 713, and other cases of like holding to the effect that in a divorce or separation action against a nonresident defendant served by publication, the court may determine the custody of children who are within the state. See, also, Beckmann v. Beckmann, Mo.App., 211 S.W.2d 536; Beckmann v. Beckmann, 358 Mo. 1029, 218 S.W.2d 566, 9 A.L.R.2d 428; In re Estate of Newman, 75 Cal. 213, 16 P. 887, 7 Am.St.Rep. 146; Wakefield v. Ives, 35 Iowa 238; Minick v. Minick, 111 Fla. 469, 149 So. 483; McGuinness v. McGuinness, 72 N.J.Eq. 381, 68 A. 768.

In 25 Am.Jur., Habeas Corpus, § 82, p. 207, it is said: 'The decree rendered in a divorce suit, awarding custody of a child, must be recognized and given effect in a subsequent habeas corpus proceeding between the same parties, involving the right to the custody of that child, * * *.'

It has also been held that a prior divorce decree determining custody, although binding as between the parents, is not a bar to a subsequent habeas corpus proceeding to determine custody, since the decree did not consider the position of the state as parens patriae and the welfare of the child. See Wear v. Wear, 130 Kan. 205, 285 P. 606, 72 A.L.R. 425. And, a divorce decree is not conclusive in a subsequent habeas corpus proceeding where the parties to the two proceedings are not the same. See 39 C.J.S., Habeas Corpus, § 46, p. 584.

In the instant case it will be observed that the parties are not the same as in the divorce proceedings. In this case the mother of the child is seeking its custody against the paternal grandmother. The husband is not a party to this action. Any relief that the husband may be entitled to must be in the court where the decree was rendered, as provided for by law. The paternal grandmother was not a party to the divorce action. She was not required to intervene in such action with reference to the custody of the child here in controversy. She is not in a position to attack the validity of the divorce decree in this action. However, as will become apparent later in the opinion, in an action in habeas corpus involving the custody of a child, she is entitled to resist and defend the right to retain the custody of the child.

'In general, the writ of habeas corpus has been extended to, and may be used in, controversies regarding the custody of infants. Such proceedings are governed by considerations of expediency and equity, and should not be bound by technical rules of practice.' In re Application of Reed, supra.

This jurisdiction, in habeas corpus actions instituted in the courts of this state for the custody of a minor child, has for a period of more than 60 years adhered to the following rule. In Sturtevant v. State, 15 Neb. 459, 19 N.W. 617, 48 Am.Rep. 349, it was held: 'In such a controversy for the custody of the child the order of the court should be made with a single reference to the best interests of such child.' In the opinion the court said: 'But rather, taking our statute as a general guide, we will look to the particular necessities of the case and give our special attention...