Byers v. Superior Court of Arizona
| Decision Date | 01 May 1944 |
| Docket Number | Civil 4717 |
| Citation | 61 Ariz. 284,148 P.2d 999 |
| Parties | JANE RYLAND BYERS and R. M. BYERS, Her Husband, Petitioners, v. SUPERIOR COURT OF ARIZONA, IN AND FOR THE COUNTY OF YAVAPAI and THE HONORABLE RICHARD LAMSON, Judge of Said Superior Court. Respondents; |
| Court | Arizona Supreme Court |
Original proceeding for Writ of Prohibition. Alternative writ quashed.
Mr George D. Locke and Mr. J. B. Sumter, for Petitioners.
Mr. B G. Thompson, for V. Clare Dodd, Party in Interest.
This litigation is over which of the divorced parents is entitled to the custody of their two minor children, but the particular question now presented to this court is what superior court of the state has, under the facts jurisdiction to decide that question.
V. Clare Dodd and Jane Ryland intermarried in Denver, Colorado, May 15, 1933, and thereafter lived together as husband and wife in Tucson, Arizona, until January, 1938, when the wife left or deserted her husband and took their two minor children, Harriett Mary, born May 22, 1935, and Ann Shirley, born April 22, 1936, to Denver, Colorado.
On the complaint of V. Clare Dodd that his wife had deserted him, he was on October 11, 1938, in the superior court of Pima County granted a divorce, and in the decree the custody of the children then in Colorado with their mother was awarded to the mother, with the right of visitation by plaintiff "any day and at all reasonable hours."
In 1943 Jane Ryland Dodd and R. M. Byers intermarried at Phoenix, and since then and up to the present time she, her husband and children have had their domicile at Rock Springs, Yavapai County, Arizona.
On March 11, 1944, V. Clare Dodd filed his petition in the superior court of Yavapai County for a writ of habeas corpus for the two minor children, the object of such action being to determine which of their parents was entitled to their custody, and thereafter, on April 12, 1944, the mother, Jane Ryland Byers, and her husband, R. M. Byers, filed their petition in this court, reciting the facts as we have indicated above, praying for an alternative writ of prohibition to issue against the superior court of Yavapai County and V. Clare Dodd, staying said proceeding until the further order of this court.
It is apparent that the writ of prohibition is sought to prevent the superior court of Yavapai County from taking jurisdiction of the habeas corpus proceeding. It is the contention of the petitioners that the superior court of Pima County, in which the action for divorce was filed, still retains jurisdiction under the facts and circumstances to change, alter or amend its decree concerning the custody of the minor children, if the facts appearing at this time authorize such a change. This contention is based upon section 27-811, Arizona Code Annotated 1939, reading as follows:
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