Cole v. Cole

• Court: Idaho Supreme Court
• Writing for the Court: Baker, District Judge.
• Citation: Cole v. Cole, 68 Idaho 561, 201 P.2d 98 (Idaho 1948)
• Decision Date: 21 December 1948
• Docket Number: 7421
• Parties: COLE v. COLE

201 P.2d 98

68 Idaho 561

COLE v. COLE

No. 7421

Supreme Court of Idaho

December 21, 1948

Appeal from District Court, Fifth District, Bannock County; L. E Glennon, Judge.

Reversed, and remanded with instructions.

H. J Swanson, of Pocatello, for appellant.

Sec 5-806, I.C.A., provides how to plead a judgment or other determination of a court. "It is not necessary to plead the facts conferring jurisdiction * * * but such judgment or determination may be stated to have been duly given or made." Jensen v. Berry & Ball Co., 37 Idaho 394, 396, 216 P. 1033; "A party is not required to follow the statutory method of pleading a judgment but if he elects to state facts instead of following the statutory plan he must set out all the facts necessary to confer jurisdiction."

What kind of a court is the District Court of Weber County, Utah? It is apparently only a county court. Sutherland Code Pleadings, Practice and Forms, Volume 3, Section 5605, p. 3121 -- "In Pleading, the judgment of a sister state, it is sufficient to allege that it was duly recovered."

There is no such pleading of a judgment here as there was in Schenk v. Birdseye, 2 Idaho 141, 6 P. 128. See also State ex rel. Stack v. Grimm, 239 Mo. 340, 143 S.W. 450, Ann.Cas.1913B, 1193.

After the writ was issued, the petition, therefore, became functus officio, and any allegations contained therein were not available to the petitioner as a traverse or answer to the return.

Sec. 19-4312, I.C.A., provides for an answer to the return. In this case none was filed.

Allen v. Williams, 31 Idaho 309, 171 P. 493, holds that the return is the complaint, i. e. takes the place of the complaint.

State v. Olsen, 53 Idaho 546, 26 P.2d 127, when writ is issued, petition has accomplished its purpose. Also statute intends there shall be an answer to the return; and on the return and the answer thereto, the issues are framed of which there is the trial.

C. M. Jeffery, of Pocatello, for respondent.

Proceedings on habeas corpus involving the custody of a child are of a special character. They are addressed to the equitable powers of the court and are governed not so much by considerations of strictly legal right, as by those of expediency and equity, and above all the welfare and interest of the infant, and the court is not bound by, and should not give effect to, technical rules of practice, but should decide the case on the merits. In determining the question of the child's custody, the court has wide discretion. Jain v. Priest, 30 Idaho 273, 164 P. 364; Allen v. Williams, 31 Idaho 309, 171 P. 493; Mabbett v. Mabbett, 34 Idaho 611, 202 P. 1057; Tunnell v. Reeves, Tex.Com.App., 35 S.W.2d 707; Ex parte Flynn, 87 N.J.Eq. 413, 100 A. 861; Ex parte Badger, 286 Mo. 139, 226 S.W. 936, 14 A.L.R. 286; Telschek v. Fritsch, 38 Tex.Cr.R. 43, 40 S.W. 988.

Baker, District Judge. Givens, C. J., and Holden and Hyatt, JJ., concur.

OPINION

Baker, District Judge.

Harvey Cole, father of two minor children of himself and Viola G. Cole, has appealed from the order of the trial court awarding custody of the children to the mother, hereinafter referred to as the petitioner, in habeas corpus proceedings instituted by her. The decision on petitioner's motion in this court for allowance for attorney's fees and costs on appeal is reported in 68 Idaho 257, 193 P.2d 395.

On December 3, 1947, petitioner filed her petition in and addressed to the district court of Bannock County, praying that a writ of habeas corpus issue directed to appellant, hereinafter, inaccurately it will be conceded, referred to as the defendant, requiring him to produce the children at a time and place to be fixed and show cause for his detention and why the children should not be delivered to her and that by decree care and custody be restored to her.

Her claim of right to custody is based entirely upon a decree dated May 10, 1947, and order dated September 24, 1947, of the district court of Weber County, Utah, in an action instituted by her against the defendant. Her allegations with respect to the decree and order, complete except as to some of their provisions, are as follows:

"That on the 10th day of May, 1947, the District Court of Weber County, State of Utah, entered its decree of divorce in the action pending in said District Court of Utah, which decree, among other things provided:

"'* * * That the defendant * * * is awarded the custody and control of the * * * children (named), provided, however, * * * that said children may remain with the plaintiff until the end of the present school term, at which time they shall be turned over to the defendant by the plaintiff.

"'That at the beginning of the school term in the fall of 1947 the * * * children (named) shall be placed with the plaintiff, provided she is in a position to provide a home for said children for the entire school year * * *.

"'That the Court shall have continuing jurisdiction of the minor children of the parties.'

"That on the application of the petitioner the Honorable Charles G. Cowley, Judge of the District Court of Weber County, State of Utah, made an Order to Show Cause, on the 24th day of September, 1947, ordering and directing the respondent (defendant) to deliver and surrender said * * * children to the petitioner, in compliance with the decree of the court, a copy of which said Order to Show Cause is marked 'Exhibit B' attached hereto and made a part of this petition."

The attached exhibit recites the provisions of the decree of May 10, 1947, as above outlined, delivery of the children to the defendant at the end of the school term in June, 1947, of service of the order to show cause, recites and finds that the plaintiff has arranged for a suitable home for the children and concludes that the plaintiff is entitled to custody in accordance with the decree and orders:

"That the defendant, Harvey Cole, be and he hereby is ordered and directed to deliver the * * * children (named) to the plaintiff and to forthwith surrender the custody of said children to the plaintiff for the period of time provided for in said decree."

The alleged demand for custody, refusal to surrender and unlawful detention by the defendant.

The petition was presented to the district judge who, from a reading of it, found that a writ of habeas corpus ought to issue and ordered that such writ be issued directed to the defendant commanding him to have the children before the court on December 9, 1947, and that he show cause for his detention. Writ was accordingly issued and served.

Defendant filed his motions to require the petitioner to furnish security for costs, as provided by Section 12-116, I.C.A., and to stay proceedings until the security was furnished, to quash the writ upon the ground of insufficient facts stated in the petition and to strike the decree and order attached to the petition as exhibits. His motions were denied.

Defendant then filed his "Plea to the Jurisdiction of the Court" in which he attacked the jurisdiction of the Utah court to make the order of September 24, 1947, by alleging that he and the children had at all times since prior to that date been citizens and residents of Franklin County, Idaho, and subject to the jurisdiction of the Idaho courts; that he, as the father of the children, had the legal right to fix their residence and domicile and that he had, before the issuance of the order to show cause, established their residence and domicile in this state; that service of the order to show cause was made in Idaho and that the Utah court was without authority to make the order of September 24, 1947.

At the same time defendant filed his return to the writ, the substance of which is hereinafter set forth. No responsive pleading was filed by petitioner.

When the matter came on for hearing and before any evidence was offered and repeatedly and upon every opportunity thereafter, counsel for the defendant directed the attention of the trial court and counsel for petitioner to the absence of exception, traverse or answer to the return and stated his position that the return was to the writ, not to the petition; that it served the purpose of the complaint in ordinary civil practice; that the issues of fact were formed by traverse and issues of law by exceptions to the return and that in this case the return stood undenied and admitted. Counsel for petitioner, just as frequently in the trial court and by his brief and oral argument in this court, stated his position that the petition was in the case for all purposes and that the defendant should answer it; that defendant could make no answer except that the Utah court was without jurisdiction or that a substantial change had taken place subsequent to the entry of decree and order and since the defendant had done neither, there was nothing for petitioner to answer. His position is clearly disclosed by his statement in the trial court that: "There would be nothing for us to deny. All we would do would (be to) go ahead and re-allege what we have in the petition as an answer." In response to question by the court, he expressed his complete satisfaction with the pleadings and his willingness to stand upon them. There was no attempt to obtain stipulation or order that the petition be treated as an answer to the return.

Defendant submitted oral proof in support of the allegations of his return. On cross-examination he testified that he and the children were residents of Ogden, Utah, at the time of the commencement of the divorce action and until after the entry of decree.

Petitioner then moved unsuccessfully for summary order directing the immediate return of the children to her. The motion was based chiefly upon the failure of the defendant in his return to deny or otherwise...