Bd.man v. Bd.man.

• Decision Date: 05 November 1948
• Citation: 135 Conn. 124,62 A.2d 521
• Court: Connecticut Supreme Court
• Parties: BOARDMAN v. BOARDMAN.

135 Conn. 124

62 A.2d 521

BOARDMAN

v.BOARDMAN.

Supreme Court of Errors of Connecticut.

Nov. 5, 1948.

Appeal from Superior Court, New London County; Inglis, Judge.

Habeas corpus proceeding by Robert E. Boardman against Shirley E. Boardman to determine the custody of a child, brought to the Superior Court and tried to the court. From judgment for defendant, the plaintiff appeals.

No error.

DICKENSON and MELLITZ, JJ., dissenting.

Allyn L. Brown, Jr., of Norwich, for plaintiff.

Arthur M. Brown, and Charles V. James, both of Norwich, for appellee.

Before MALTBIE, C. J., and JENNINGS, ELLS DICKENSON and MELLITZ, JJ.

MALTBIE, Chief Justice.

The only question presented by this appeal is whether a court of this state had the right in a habeas corpus action to determine the custody of a minor child of the parties who, since their separation, has lived with the mother, the defendant, in this state, despite the fact that the father, the plaintiff, obtained in New York, his domicil and the marital domicil, a separation decree in which an order dividing the custody of the child between the parties was made. The action was brought by the father to secure possession of the child. The trial court awarded custody to the defendant, except that a right of visitation at all reasonable times was granted the plaintiff. The plaintiff has appealed.

The undisputed facts relevant to the issue before us may be briefly stated. In 1943 the parties were married in Elmira, New York, and lived there as husband and wife until 1946. A son was born to them in 1944. In January, 1946, the plaintiff, being temporarily out of employment because of a strike at the place where he had been working, brought the defendant and son to her parents' home in this state, where he obtained temporary employment. On March 3, 1946, having been notified that the strike was terminated, he returned to Elmira. The life of the parties while living in New York had been marred by marital difficulties. The defendant determined not to return to New York with the plaintiff but to make Norwich her permanent home, and so informed the plaintiff. She has resided in Norwich since that time. The child has resided with her. It was, when her husband returned to Elmira, and has since been, her intention to bring an action for divorce in this state as soon as she has lived here long enough. The plaintiff has at all times intended to make his permanent home in Elmira. For about two months after his return there he maintained the apartment where the parties had previously lived. In May, 1947, he brought an action against the defendant for a judgment of separation and custody of the child. The action was based upon abandonment. See N.Y.Civil Practice Act, § 1161. The complaint was served on the defendant only by leaving a copy of it and a summons with her in Connecticut, and she made no appearance in the action. A judgment was rendered in the New York action in the plaintiff's favor, and in it the custody of the child was awarded to each of the parties for a portion of each year. The decree has not been modified, nor has there been any material change of circumstances relevant to the custody of the child since it was rendered.

In Freund v. Burns, 131 Conn. 380, 383, 40 A.2d 754, decided in 1944, we had before us a habeas corpus action seeking the custody of minor children. The parents had been divorced in New York when the family resided there, and in the decree there was a provision as to the custody of the children, later modified in certain respects. The mother remarried and moved to this state. The issue presented to us was whether in the habeas corpus proceeding in our court the decree in the New York action as to the custody of the children must be given effect. Examining the law of New York we concluded that under its statutes such a decree could not be modified at the discretion of the court but only where there had been a material change of circumstances. We held that the decree in that state must be given the same effect here that it would have in New York and that our court could not render a judgment at variance with it unless there had been such a change of circumstances. We have found no case in the New York courts since our decision which indicates that the law of that state is different from what we then found it to be; and the decision in the Freund case would control the present action unless it be by reason of a consideration advanced by the defendant. No question arose in that case as to the jurisdiction of the New York court to determine the custody of the children. In the case now before us the defendant claims that the New York court had no jurisdiction to include in its decree a provision as to the custody of the child of the parties.

The statutes of New York provide: ‘A married woman is a joint guardian of her children with her husband, with equal powers, rights and duties in regard to them.’ N. Y. Domestic Relations Law, § 81. In People v. Brooks, 35 Barb., N.Y., 85, 92, it is stated, obiter, that this statute only applies as long as husband and wife live together. Later New York decisions do not recognize that limitation. In Matter of Thorne, 240 N.Y. 444, 449, 148 N.E. 630, 631 it is said: ‘The identity of person of husband and wife is no longer a fetish of the law. The residence of the infant is no longer exclusively that of the father. It may be the residence either of the father or the mother. As the mother is the joint guardian of the children with the husband, if the wife has selected her own domicile, as she may, whenever it is necessary or proper for her to do so * * * and the child lives with her, the domicile of the mother is for the time being the domicile of the child. Her rights of custody are equal to those of the father.’ It is, however, pointed out in that case (240 N.Y. 444, at page 448, 148 N.E. 630) that the mother's guardianship terminates when a proper decree of divorce with an order as to the custody of a child has been rendered. In this State our statutes concerning guardianship first state that the residence of a minor shall mean his actual residence, not that imputed to him by the residence of his parents or guardian. General Statutes § 4793. Section 4794 then provides: ‘The father and mother of every legitimate child under twenty-one years of age are constituted joint guardians of the person of such minor, and the powers, rights and duties of the father and the mother in regard to such minor shall be equal.’ The right to the custody of a minor child is one of the principal attributes of a guardianship of the person. Kline v. Beebe, 6 Conn. 494, 500; Selden's Appeal, 31 Conn. 548, 553; 25 Am.Jur. 41. Under these statutes each of the parties had an equal right to the custody of their son; Dunham v. Dunham, 97 Conn. 440, 442, 117 A. 504; Goshkarian's Appeal, 110 Conn. 463, 466, 148 A. 379; that right continued after their separation; Pfeiffer v. Pfeiffer, 99 Conn. 154, 157, 121 A. 174; White v. White, 77 N.H. 26, 29, 86 A. 353; and the right of each parent was independent of that of the other. Illingworth v. Madden, 135 Me. 159, 166, 192 A. 273, 110 A.L.R. 1090. The defendant claims that she had acquired a domicil in Connecticut, that this was also the domicil of the child when the separation suit was brought and decided in New York, and that therefore the court in that state lacked jurisdiction to make a decree as to the custody of the child to which our courts are bound to give full force and effect.

The domicil of the plaintiff was at all times in New York and that was the state of the matrimonial domicil. Upon the basis of the copy of the complaint and the summons left with the defendant in this state, the New York court had jurisdiction to enter a judgment of separation which was entitled to full faith and credit in this state. Atherton v. Atherton, 181 U.S. 155, 21 S.Ct. 544, 45 L.Ed. 794; Haddock v. Haddock, 201 U.S. 562, 571, 26 S.Ct. 525, 50 L.Ed. 867, 5 Ann.Cas. 1; Williams v. North Carolina, 317 U.S. 287, 299, 63 S.Ct. 207, 87 L.Ed. 279, 143 A.L.R. 1273; Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561; Schaeffer v. Schaeffer, 128 Conn. 628, 634, 25 A.2d 243. By the great weight of authority, however, such service does not give a court jurisdiction to determine the custody of a child domiciled in another state. In re Volk, 254 Mich. 25, 32, 235 N.W. 854; Weber v. Redding, 200 Ind. 448, 454, 163 N.E. 269; Seeley v. Seeley, 30 App.D.C. 191, 193, 12 Ann.Cas. 1058; Kruse v. Kruse, 150 Kan. 946, 947, 96 P.2d 849; Elliott v. Elliott, 181 Ga. 545, 182 S.E. 845; Callahan v. Callahan, 296 Ky. 444, 445, 177 S.W.2d 565; Dorman v. Friendly, 146 Fla. 732, 737, 1 So.2d 734; Boens v. Bennett, 20 Cal.App.2d 477, 480, 67 P.2d 715; see Wear v. Wear, 130 Kan. 205, 217, 285 P. 606, 72 A.L.R. 425; Goodrich, Conflict of Laws (2d Ed.) § 132; 2 Beale, Conflict of Laws, § 144.3; Restatement, Conflict of Laws, § 117. In Estin v. Estin, supra, 334 U.S. at page 545, 68 S.Ct. at page 1216, it is said: ‘But the fact that marital capacity was changed does not mean that every other legal incidence of the marriage was necessarily affected.’

In Yarborough v. Yarborough, 290 U.S. 202, 54 S.Ct. 181, 78 L.Ed. 269, 90 A.L.R. 924, the parents of a minor daughter lived in Georgia; the mother went to North Carolina, where the daughter joined her; while they were in that state the father brought an action for divorce in Georgia and the mother filed an answer and a cross-suit; subsequently, she moved with the child to South Carolina. The father recovered judgment for divorce and thereafter, in the same action, an order (290 U.S. at page 206, 54 S.Ct. at page 183, 78 L.Ed. 269, 90 A.L.R. 924) was made directing the transfer of certain property he owned to a trustee to be used for the benefit of the daughter, ‘in full settlement of temporary and permanent alimony * * * and * * * of all other demands of every nature whatsoever between ...