Chamberlain v. Chamberlain, 15014.
Decision Date | 15 December 1941 |
Docket Number | 15014. |
Parties | CHAMBERLAIN v. CHAMBERLAIN. |
Court | Colorado Supreme Court |
Error to District Court, Pueblo County; Harry Leddy, Judge.
Divorce proceeding by D. A. Joyce Chamberlain against Myrtle Elizabeth Chamberlain. To review an order awarding custody of the minor child to the mother for three months after which child was to be returned to the father, plaintiff brings error.
Reversed with directions.
John W Elwell, of Pueblo, for plaintiff in error.
V. G Seavy, of Pueblo, for defendant in error.
A divorce proceeding instituted by the husband. He alleged that the wife had been guilty of infidelity. In addition to asking for a decree of divorce, he prayed that the court award him the custody of a minor daughter. At the time the court considered the question of temporary custody, the child was with the father, but upon hearing, the court, reserving visiting rights to the father, awarded her custody to the mother for the ensuing three months, after which she was to be returned to the father.
Upon application of the father, proceeding on error, we stayed the judgment of the lower court pending determination of an application for supersedeas. It does not appear that there has been any interruption of the father's custody at any time; therefore, as seems clear, controlling dates in mind, unless the trial court, on proper motion in this proceeding--if it is deemed still to be pending--shall order a change of custody, and question in relation thereto is moot.
From the record it appears that February 1, 1941, the wife in the meantime not having interposed a cross-complaint, the husband filed formal dismissal of the action as follows: 'Comes now the plaintiff and hereby dismisses the above entitled action without prejudice.' The court, however, proceeding upon the theory that the attempted dismissal, as indicated, was not a matter of right, and, the wife objecting thereto, declined to enter an order of dismissal. We think this was error. Upon filing the dismissal in form as stated, the action stood dismissed 'without order of court.' Rule 41(a)(1), R.C.P.Colo. See rule 1, C(b), id., as to the effective date of the first-mentioned rule as to matters already pending, and which we think applies here. If we assume that Civil Code section 184 controls, still the case must be regarded as dismissed. Doll v. Slaughter, 39 Colo. 51, 88 P. 848. In this latter case we said: The same doctrine obtains in divorce cases. See Doty v. Doty, 103 Colo. 543, 88 P.2d 573; Milliman v. Milliman, 45 Colo. 291, 101 P. 58, 22 L.R.A.,N.S., 999, 132 Am.St.Rep. 181. The wife not only has filed no counterclaim, but she has not deigned to deny the charge made against her, or otherwise answered the complaint; nor has she charged her husband with any misconduct.
We do not believe that the welfare of the little girl here involved would be advanced by keeping alive the charge against her mother--a charge which the father has undertaken to obliterate by his dismissal, and which, under reasonable construction of rules of procedure, the state of the pleadings considered, we think he has accomplished. If the mother shall wish to proceed to obtain the child's custody, her remedy is an appropriate action on her own behalf.
Without prejudice to the rights of either party to proceed anew as advised, let there be reversal of the judgment with the concurrent direction to dismiss the action.
Technically, I suppose it may be conceded that this is a divorce proceeding, as denominated by the court's opinion, but essentially, so far as substantive rights are concerned, it presents the claim of a mother to the custody of her three year old daughter, and her substantive and prior right should control us in our consideration of the legal factors involved. Certainly, it would be conceded--other things being equal--that the little girl should be with her mother, regardless of what aspersions may have been cast upon her character.
Three proceedings are involved: Habeas corpus, annulment and divorce. In order that a more complete picture may be presented of the situation, the following facts are set forth chronologically: December 27, 1940, the husband sued the wife for divorce on grounds of adultery and bigamy, alleging, also, that the child was with a Mrs. Murray (the wife's mother), and praying for its custody. He obtained an order directed to Mrs. Murray for such custody on that day. She refused to surrender the child in compliance with the order and December 28th the father sought and obtained a writ of habeas corpus against her. Hearing was had on January 2, 1941, at which time the court ordered custody to the husband 'until such time as the custody of said child is disposed of in the action now pending between its parents.' Simultaneously, the order in the divorce case--entered December 27th, 1940--giving the custody to the husband was revoked. January 28, 1941, the wife filed a motion in the divorce case asking that the complaint be made more specific, and that attorneys' fees be allowed. February 1, 1941, the husband filed a 'dismissal' in the following words: 'Comes now the plaintiff and hereby dismisses the above entitled action [divorce] without prejudice.' No order of dismissal was entered at that time. February 5, 1941, the wife filed another motion objecting to the dismissal, and on February 15th filed her petition for custody of the child. February 21st the court sustained the wife's objections to the dismissal, to which ruling no exception was taken, the court also sustaining her motion to make more specific.
Meanwhile, on February 7th, one Barnes, to whom the wife allegedly had been married bigamously on January 2nd, filed suit for annulment in the county court. The wife consented to the annulment and a decree was entered accordingly. No point is made of this annulment, although it might well become important in relation to an attempted proof of the charges against her.
June 20th the husband filed answer to the wife's petition for custody, alleging that she was not a fit person to have custody of the child.
Hearing was had June 27th on the issue of custody, following which the court ordered that the wife be given custody of the child for three months with the right of visitation by the husband and at the end of three months, the child ...
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