Bassett v. Bassett, 5515

• Decision Date: 20 November 1952
• Docket Number: No. 5515,5515
• Citation: 1952 NMSC 100,250 P.2d 487,56 N.M. 739
• Parties: BASSETT v. BASSETT.
• Court: New Mexico Supreme Court

Page 487

250 P.2d 487

56 N.M. 739

BASSETT v. BASSETT.

No. 5515.

Supreme Court of New Mexico.

Nov. 20, 1952.

Hannett & Hannett, Albuquerque, for appellant.

Iden & Johnson, Albuquerque, for appellee.

COORS, Justice.

This is an appeal by petitioner below and appellant here, Cornish Bassett, from an order entered by the District Court of Bernalillo County dissolving and dismissing a writ of habeas corpus sued out by appellant and awarding the custody of two minor children to their mother, appellee and respondent below, Jean Campbell Bassett.

Appellant filed in the District Court of Bernalillo County, New Mexico, a petition for the writ of habeas corpus on the 17th day of September, 1951, against his wife, the appellee, seeking a writ of habeas corpus on behalf of the two minor children of the appellant and appellee, Thomas Campbell Bassett, a son eight years of age and Stephanie Bassett, a daughter six years of age, to require the delivery of the minor children to an officer of the court forthwith until trial and upon trial that the court award the custody of the children to him.

The appellee filed her return to writ of habeas corpus and answer to the petition by her attorneys and the appellant filed his reply thereto. The matter came on for hearing before the court, at which time both the appellant and the appellee, and also the two minor children, were actually present in person during the hearing and the appellant and appellee both appeared by their respective counsel.

After all of the evidence was introduced by appellant and appellee, and after hearing argument of counsel, the court announced orally, on the 18th day of December, what its decision would be. Neither of the parties sought, or requested any findings of fact or conclusions of law and no formal written findings of fact or conclusions of law were made by the court, excepting such as were found in the said final order itself, entered December 20, 1951.

Certain portions of the order appealed from should be kept clearly in mind in the discussion of this appeal, and such portions of the order are therefore quoted as follows:

'That the Respondent, Jean Campbell Bassett, has actually been residing in Bernalillo County, New Mexico, since September 1, 1951; that Respondent has provided a suitable home for herself and said two children in Albuquerque, New Mexico, and that said two children, since the beginning of the fall school term, have been and still are regularly attending school in the City of Albuquerque, New Mexico; that both the Petitioner, Cornish Bassett, and the Respondent, his wife, Jean Campbell Bassett, and the two minor children of the parties named in the petition are actually in Court and that the Court has jurisdiction of all parties and the subject matter of this cause.

'That upon all the evidence introduced the Court finds and concludes that the Respondent is a proper person to have the care and custody of both of said minor children and that it is for the best interests of the said two minor children that they remain in the custody of their mother, the Respondent, and not be disturbed by the Petitioner, and it is accordingly ordered that the custody of said two minor children, Thomas Campbell Bassett and Stephanie Bassett, be and the same hereby is awarded to their mother Jean Campbell Bassett, the Respondent herein, until the further order of the Court, and the Writ of Habeas Corpus heretofore issued herein is now dissolved and dismissed.

'* * * Petitioner is given the right to visit the said minors at Respondent's abode at all reasonable times.'

The evidence disclosed the following facts: That the appellant was at the time of the hearing, and during his entire lifetime had been, a resident and inhabitant of the state of Massachusetts; that the appellant and appellee were married in the year 1941 and established their residence in Massachusetts and continued to live there together as husband and wife until June 1951; that there were born to them the two children above mentioned; that in June 1951 the appellee, mother of the children, took them with her to California for a vacation; that on August 27, 1951, the appellant, father of the children, met his wife and the children in Pasadena, California, and they lived together until August 31, 1951, when the wife and the two children boarded the train at Pasadena, apparently bound for Boston, Massachusetts, with the understanding that the husband would fly back and would meet his wife and children at the railroad depot in Boston upon their arrival a few days later. When the mother and children reached Albuquerque, N. M., they left the train, on the first day of September, 1951, where they have been physically present and residing from that time to and including the time of the hearing by the trial court. The appellant, upon his arrival in Boston, was advised by telephone by an aunt of the appellee that the appellee and her two children had left the train at Albuquerque and did not propose to return to him in Massachusetts.

A few days after their arrival in Albuquerque, N. M., the mother leased a home for herself and children in a desirable residential district of Albuquerque. Both children were immediately placed in a private school and continued to attend school, and were doing satisfactory work during the time prior to the trial. The little boy had joined the Cub Scouts and weekly den meetings were held at him home. A competent housekeeper had been employed and was assisting the appellee with the housework and attending both the children.

The appellant was an accountant, doing work for small businesses, and was also a salesman for prefabricated houses in Milton, Massachusetts, which was his domicile. His total income was approximately $6,000 a year, more or less. The appellee had an independent income of her own in excess of the income of her husband.

We believe it is unnecessary to discuss the evidence in detail as there was substantial evidence to support the final order of the trial court and the findings and conclusions contained therein. The points relied upon by appellant we consider as questions of law rather than questions of fact. There was no evidence in the case to show that during their residence in New Mexico, from September 1 to the time of the trial, the children were not properly and well cared for, nor any evidence that they would not be well cared for in the future while in Albuquerque with their mother.

Point I made by appellant reads as follows:

'The trial court did not and could not acquire jurisdiction to award the custody of the children to the appellee in a habeas corpus proceeding because appellee could not, has not, and cannot establish such domicile in New Mexico as to give the court jurisdiction unless it affirmatively appears that the appellant has been guilty of an act or acts which would constitute a ground for divorce or separation in that it affirmatively appears that the parties have not permanently separated and that the only ground of complaint against appellant as a father or husband is that appellee, the wife, insists upon selecting the domicile of the parties contrary to the form of the statute in such cases made and provided and contrary to the natural laws governing husband and wife.'

The theory of appellant's contention is apparently that the jurisdiction of the New Mexico court to determine and award custody of minor children residing and physically present in New Mexico depends upon the legal domicile of the mother and the children and that, inasmuch as the husband's domicile is in Massachusetts the wife's domicile, and likewise the domicile of the children, follows that of the father, except in cases where a woman is legally justified in establishing a separate domicile from her husband on account of his misconduct, which would constitute a ground for divorce or legal separation, which misconduct on the part of appellant is not present in this case. In other words, that the only state court having jurisdiction to award custody of the children would be the court of the domicile of the husband in Massachusetts even though the wife and the children were absent therefrom and residing in another state.

While there may be some minority support for such a contention we find the overwhelming weight of authority otherwise and in support of the judgment of the lower court in this case under similar facts and circumstances. It must be borne in mind that there was no judgment or decree of any court of Massachusetts or any other state excepting New Mexico in any proceeding granting a divorce or legal separation between appellant and appellee or any decree involving the custody of the children. Neither was there any action pending of any such nature between these parties in any other state but New Mexico. Consequently, no question is involved with reference to giving full faith and credit to a judgment or decree of any court in another state or foreign country.

The appellant, a resident of Massachusetts, came to New Mexico and filed, in the district court of Bernalillo County, the petition for a writ of habeas corpus against his wife, appellee, and thereby himself invoked the jurisdiction of the New Mexico court before which he appeared in person and by counsel and as a witness in the proceeding. The appellee was present and residing within the jurisdiction of the trial court. She was personally served in Albuquerque, Bernalillo County, New Mexico; appeared personally and by counsel in the case, and the children, who were residing with their mother, appeared personally before the court during the hearing.

Counsel for appellant says this case is one of first impression in this jurisdiction. While we believe it is the first time that the jurisdiction of the court has been questioned in a child custody case where the father and mother, both parties to the action, and also the minor children, the subject of the controversy, were...