Clay, In re, 7274

• Decision Date: 18 June 1964
• Docket Number: No. 7274,7274
• Citation: 393 P.2d 257,96 Ariz. 160
• Parties: In the Matter of the Custody of Harry Bradford CLAY, IV, and Shelly Diane Clay, Minor children of Ellen Clay, now known as Ellen Farmer. Ellen CLAY, now known as Ellen Farmer, Appellant, v. Harry B. CLAY, III, Appellee.
• Court: Arizona Supreme Court

Page 257

393 P.2d 257

96 Ariz. 160

In the Matter of the Custody of Harry Bradford CLAY, IV, and Shelly Diane Clay, Minor children of Ellen Clay, now known as Ellen Farmer.

Ellen CLAY, now known as Ellen Farmer, Appellant, v. Harry B. CLAY, III, Appellee.

No. 7274.

Supreme Court of Arizona, In Banc.

June 18, 1964.

Ryley, Carlock & Ralston, Phoenix, for appellant.

Minne & Sorenson, Charles A. Filler and Marshall W. Haislip, Phoenix, for appellee.

ROBERT O. ROYLSTON, Judge of the Superior Court.

This is an appeal from a Maricopa County Superior Court ruling on a Writ of Habeas Corpus placing minor children in the custody of their father.

Ellen Farmer, appellant, the mother of Harry Bradford Clay, IV, and Shelly Diane Clay, was the petitioner, and Harry B. Clay, III, appellee, their father, was the respondent. They will be designated herein as 'mother' and 'father'.

The mother and father were married January 15, 1949; Harry B. Clay, IV, was born December 16, 1949, and Shelly Diane Clay was born February 13, 1952. The mother and father lived in New Jersey from the time of their marriage, and the children were both born there and continued to live there until their removal to Arizona in May, 1960. In May, 1956, domestic difficulties caused the mother and father to separate and live apart. In December, 1956, the children were placed by the father with his parents and remained there until coming to Arizona.

The mother commenced a proceeding in the Chancery Division of the Superior Court of New Jersey against the father and his parents to determine her custody rights. On June 5, 1958, that court awarded temporary custody of the children to their paternal grandparents, Harry B. Clay, Jr. and Alice M. Clay.

On December 15, 1958, the father filed for divorce in New Jersey, but evidently never pursued the matter to trial, or to judgment.

On January 12, 1960, the father obtained a divorce in Alabama with the knowledge and consent of the mother. That decree awarded custody of the children to the father. But since the parties agreed that the children were never in the State of Alabama, neither seriously contends that the Alabama decree is binding as to custody. Within one month thereafter, the mother and father had each married their present spouses. The minor children remained with their paternal grandparents until May 26, 1960, at which time their paternal great grandparents brought them to Phoenix, where the children's father was residing with his present wife.

Thereafter, on August 3, 1960, the mother went to New Jersey from her home in California and obtained an order granting her temporary custody for a period of one month. This order was issued in the same action which had originally placed temporary custody in the paternal grandparents. The mother then came to Phoenix and petitioned for a Writ of Habeas Corpus and Order to Show Cause, asking that the children be taken from the father and placed in her custody, pending further order of the New Jersey Court.

At the hearing, the trial court, over the mother's objection, received evidence relating to the issue of which parent should have custody. The trial court determined, '* * * that the best interests and welfare of the minor children * * * would be best (sic) served by placing the care, custody and control of said minor children * * *' in the father.

The mother contends that the trial court erred in the following respects: failing to give full faith and credit to the August 3, 1960, order of the New Jersey Court granting temporary custody to the mother; assuming plenary jurisdiction over the status of the children and proceeding to hear and determine the matter of custody on the basis of the best interest and welfare of the minors; determining that the father should have the custody of the children; and failing to grant a motion for new trial.

The first two assignments of error will be discussed together. The question presented to us is as follows: On a Writ of Habeas Corpus, is the trial court empowered to determine custody of children temporarily within the State of Arizona, particularly if there is an award of custody outstanding in another state? Our court was not faced with this particular question in Schuster v. Schuster, 75 Ariz. 20, at 24-25, 251 P.2d 631, at 634, but this court stated:

'[T]he right and duty of an equity court to protect the personal and property rights of an infant is ordinarily limited to those infants within the geographical jurisdiction of the court. * * *

'Following the above-mentioned principles, the state of Nebraska, in the case of Geary v. Geary, 102 Neb. 511, 167 N.W. 778, 20 A.L.R. 809, determined the issues respecting an infant within its jurisdiction, acting in the role of parens patriae, and held that it did not consider itself bound by any prior judgment on the same issues rendered by an Iowa court since the infant was no longer in Iowa, thereby denying that state the right to continue in the role of parens patriae. In a similar situation the state of Colorado assumed to protect an infant within its borders, notwithstanding the fact that the infant's legal residence was in another state, presence within the court's jurisdiction being the basis of the assumption of the role of parens patriae. McMillin v. McMillin, 114 Colo. 247, 158 P.2d 444, 160 A.L.R. 396. Another case following the same rule, emphasizing the necessity of the infant's presence within the jurisdiction of the court as the basis of acting on its behalf, is: People ex rel. Wagner v. Torrence, 1933, 94 Colo. 47, 27 P.2d 1038.'

This last cited case, Wagner v. Torrence, supra, concerns a habeas corpus proceeding where the minor children had been brought to Colorado from the State of Wisconsin in violation of a...