Breene v. People

• Decision Date: 02 October 1911
• Parties: BREENE v. PEOPLE ex rel. BREENE.
• Court: Colorado Supreme Court

117 P. 1000

51 Colo. 342

BREENE v. PEOPLE ex rel. BREENE.

Supreme Court of Colorado

October 2, 1911

Error to District Court, City and County of Denver; Carlton M Bliss, Judge.

Habeas corpus by the People, on the relation of Bernice Breene directed against Peter W. Breene. The writ was issued, and defendant brings error. Affirmed.

Dixon & Dixon, for plaintiff in error.

A. M Stevenson, for defendant in error.

HILL J.

This is one of that unfortunate class of cases involving the right to the custody of an infant child as between the father and the mother. The proceeding was in habeas corpus. It appears from the record that the plaintiff in error, Peter W. Breene and Bernice Breene, upon whose relation this action was brought, are husband and wife, both residents of Denver; that they had one child William Breene, born about November 20, 1904; that after the birth of said child they continued to live together until about November, 1906, at which time they separated; that in 1907 negotiations were opened between their respective attorneys with a view to a settlement of their property rights; that at this time the child was in the exclusive possession of its mother, and had been since their separation; that on or about the 13th of October, 1907, when the child was in charge of its nurse, the father, without the consent of and in some manner unknown to the mother, secured possession of it, immediately taking it to the city of New York, where he placed it in the custody of one of his distant relatives intending to have it retained there. The writ of habeas corpus was not prayed for or issued until after the child had been removed from Colorado, but was issued immediately thereafter. Upon answer made the respondent was ordered to have the child returned. The trial judge stated in his findings of fact that he did not regard the father as a person unfit to have the custody of the child, but was of the opinion that the best interest of the child at its then age required that its custody be placed with the petitioner, its mother, which was so ordered. The cause is brought here by the respondent for review upon error.

The plaintiff in error has not seen fit to bring up the evidence for our consideration, for which reason we must assume that it sustains the findings of the trial court, that the mother was a fit person to have the custody of the child during its tender years, and that it was for the best interest of the child that its custody be placed with her.

The validity of the judgment is assailed upon five principal grounds. First. That, as there was no action pending at the time the child was removed by its father to the state of New York, the court was without jurisdiction upon habeas corpus to order the father to return it to Colorado. Second. That under the common law the father was entitled to the custody of the children, and that, as the common law has not been abrogated by any statute of this state, it is controlling in a case of this kind. Third. That, even if general section 2912 of the Revised Statutes of 1908 could be held applicable, it does not apply to a case where the father and mother are living separate and apart; also in case this section is held applicable that construction of it would make it unconstitutional for the reason that its title is not broad enough to include this portion of the act which differs materially from the substance of the former act amended. Fourth. That the judgment is contrary to the findings of the court, for the reason that, it having found the husband was not an unsuitable person to be awarded the custody of the child, it should have been so awarded to him. Fifth. That the judgment is erroneous, in that it deprives the respondent of the right of visitation, and makes no provision for such visits or communication with the child by him under any regulations or at all.

Counsel have cited no authorities to support their first contention, but base their argument solely upon the language of our statute. From its language we conclude that it was never intended it should be given such a narrow construction as contended for. The record discloses that both the petitioner and respondent were residents of the city of Denver and within the jurisdiction of the trial court; that the wrongful act complained of was performed within said city. Numerous cases hold that the writ operates upon the person within the jurisdiction, and he can be compelled to produce a child from without the jurisdiction. In Church on Habeas Corpus, at page 170, it is said: 'The writ of habeas corpus is sometimes resorted to as a foundation for reaching persons restrained of their liberty beyond the jurisdiction of the court to which application is made, but which restraint has been caused by a person acting within the jurisdiction of the court. * * * This question comes up most frequently in cases concerning the custody of infant children; and where a person is shown to have once had the custody of a child, as he has parted with it to some one else wrongfully--that is, without legal authority--so that it is true that he cannot redeliver the child at the time when its production is required, the child being then out of his possession, custody, and control, the fact that he has so parted with the possession of the child is no answer to proceedings to compel its production on habeas corpus, except where there is clear proof of an absolute impossibility to produce the child.' In the case at bar the writ operated upon the person within the state. The return admitted that the child was in the custody of respondent and within his power to produce within 20 days. Respondent did produce the child in obedience to the writ, and thereby placed the child in the custody of the court. Under this state of facts, we conclude that the court was within its jurisdiction in the issuance of the writ in the first instance and in the disposition of the child thereafter. This position seems to be supported by all the authorities cited upon the subject. The Queen v. Barnardo, 23 Q. B. D. 305; The Queen v. Barnardo, 24 Q. B. D. 283; In Matter of Jackson, 15 Mich. 417; Rivers v. Mitchell, 57 Iowa 193, 10 N.W. 626.

We find it unnecessary to...