Cooke v. Cooke

• Decision Date: 19 June 1926
• Docket Number: 4357
• Citation: 248 P. 83,67 Utah 371
• Court: Utah Supreme Court
• Parties: COOKE v. COOKE et al

248 P. 83

67 Utah 371

COOKE v. COOKE et al

No. 4357

Supreme Court of Utah

June 19, 1926

Original proceeding in habeas corpus, involving the custody of a minor child, by James Henry Cooke against Hilda Betty Cooke and another, brought during pendency of the named defendant's appeal from the judgment of the district court discharging a writ of habeas corpus brought by her after the juvenile court had ordered the child into the custody of the probation officers. Custody of child awarded to the named defendant on condition.

Gustin & Pence, of Salt Lake City, and Joseph A. McCaffrey, of San Francisco, Cal., for plaintiff.

King &amp Schulder, of Salt Lake City, for defendant Hilda Betty Cooke.

STRAUP J. FRICK, J., concurs. THURMAN, J., concurs in the order. GIDEON, C. J., CHERRY, J., dissenting.

OPINION

STRAUP, J.

This is a proceeding in habeas corpus involving the custody of a minor child, a girl about 5 years of age. The plaintiff, James Henry Cooke, in his complaint or petition, alleges that he is the father of the child; that he is a resident of the city of Toronto, province of Ontario, Dominion of Canada, where also the child and its mother, defendant herein, Hilda Betty Cooke, resided until, as it is alleged, she, surreptitiously and without the consent of the plaintiff, removed the child from Canada to the States; that the laws of Canada give him the paramount right to the custody and control of the child, and that, in addition thereto, in a proceeding had in a Canadian court between the parties herein, the defendant, on the 14th day of January, 1925, was adjudged guilty of adultery, which adjudication it is alleged under the laws of Canada forever barred her from all right to the care, custody, and control of the child; that thereafter, on the 26th day of January, 1925, plaintiff, in another proceeding in Canada, a habeas corpus proceeding, wherein he was plaintiff and the defendant the defendant, he obtained another judgment awarding to him the custody and control of the child that thereafter, in another habeas corpus proceeding brought by him in the superior court of California at San Francisco wherein he was plaintiff and the defendant the defendant, he on the 29th day of September, 1925, obtained another judgment wherein he was again awarded the custody and control of the child. Then it is alleged that the defendant, surreptitiously and without the consent of the plaintiff, brought the child to the state of Utah, where, in Salt Lake county in certain proceedings had, the defendant was "charged with juvenile delinquency and the custody of the child taken from her and placed in the custody of David Guest, the probation officer of the juvenile court, and that the defendant Hilda Betty Cooke, on the ground that the juvenile court had no jurisdiction of the matters alleged before it and that the juvenile court and its officers unlawfully detained and restrained the child from her custody, instituted habeas corpus proceedings against the juvenile court and its officers in the district court of Salt Lake county, and that upon such hearing it was adjudged that the juvenile court had jurisdiction and upon that ground denied the writ applied for, from which judgment the defendant Hilda Betty Cooke prosecuted an appeal to this court. Except as alleged that the defendant, by the Canadian court, was adjudged guilty of adultery, it is not alleged by plaintiff that she is an unfit or unsuitable, or otherwise an immoral, incompetent, or improper, person to have the care, custody, or control of the child.

The defendant, by her verified answer, denied that she was found or adjudged guilty of adultery by the Canadian court, and denied that she, in Canada or elsewhere, at any time committed adultery with any one. She denied that by any valid judgment or decree in Canada or in California she was ordered or adjudged to surrender or deliver the care or custody or control of the child to the plaintiff, or that she surreptitiously removed it from Canada to the States, or to Utah, and averred that when the alleged order or decree in Canada was rendered on the 26th day of January, 1925, she and the child were domiciled and residing in the state of Nevada and denied all other material allegations of the complaint. She further alleged that she and the plaintiff were married in Canada in December, 1919, she then being of the age of 19 years and he 39 years; that he drank intoxicating liquors to excess and at times remained in an intoxicated condition for several days at a time and when in such condition he was quarrelsome, abusive, used profane language, and at times compelled her to accompany him in public places causing her much humiliation and mental distress; that about three months after the marriage she became pregnant when the plaintiff began to abuse her and treat her with extreme cruelty and greatly neglected her, and when she became seriously ill and was by her mother removed to a hospital and later to her mother's home, covering a period of about six weeks, the plaintiff neglected and refused to see or visit the defendant and failed to inquire of her condition or welfare; that after she partially recovered she returned to her own home, but the plaintiff continued to neglect and illtreat her, and when ill and well along in pregnancy he neglected and refused to employ or give her any help and left her alone; that when she gave birth to the child she was taken to a hospital, but that the plaintiff did not visit her until 3 days after the birth of the child, and then flew in a rage and quarreled with and greatly disturbed her, and did not again visit the defendant or make any inquiry concerning her until about 11 days thereafter, and when about two weeks after her confinement she was ready to leave the hospital and go to her home the plaintiff refused to assist her in any way and compelled her to send for a taxicab to take her home; that after she returned to her home the plaintiff continued to illtreat and abuse her, and when the child was one year old the plaintiff, in an angry and violent manner, and without cause, grabbed the defendant and tore clothing from her body and injured and wounded her arm, and on another occasion grabbed her by the throat and severely choked her; that the plaintiff was a sexual pervert and constantly insisted on excessive indulgences, and on several occasions when a young girl 17 years of age, and a relative of the defendant, was a guest at her home, the plaintiff, in the nighttime, entered the girl's chamber and attempted to have sexual intercourse with her; that he without cause, become intensely jealous of the defendant and wrongfully accused her of associating with other men; that he employed numerous and divers detectives to watch and observe all of her movements, when she left the house, when she returned, where she went, and as to what she did; that in 1921 the plaintiff induced the defendant to go to a theater with her aunt, he stating that he was ill and for that reason was unable to accompany them, and while the defendant was absent at the theater he removed the child from their home and upon the defendant's return he caused a detective in his employ to serve her with papers in a divorce proceeding pretended to be instituted by the plaintiff against her and kept the child concealed from her for a period of four weeks or more and then consented to restore the child to her providing she gave him the sole occupancy of their home; that the defendant consented to do so, whereupon the child was restored to her, and, at the plaintiff's instance that she do so, she went to Buffalo, N.Y., he agreeing to pay her $ 35 a week for her support and that of the child; that, in pursuance of such agreement, she went to Buffalo with the child, staying there for a period of three months; that the plaintiff during such period, at week ends, went to Buffalo and there registered at a hotel, but, instead of staying there, he clandestinely stayed and cohabitated with her at her apartments; that the defendant declined to longer live with the plaintiff under such conditions and demanded that he live openly with her as his wife, and thereupon, at his instance, she and the plaintiff entered into a written agreement whereby he agreed to give her the sole custody of the child and to dismiss the divorce proceedings, in consideration of which she released and transferred all her right, title, and interest in and to all property owned or possessed by her, and thereupon they returned to Toronto, where the plaintiff procured apartments for her, and where they continued to live together for some time as husband and wife, that the plaintiff dismissed such divorce proceedings, but in 1923, to humiliate and degrade her, he commenced another divorce proceeding against the defendant before the Canadian Parliament, charging her with having committed adultery with 16 different men, many of whom were strangers to her and whom she had never seen or met and did not even know of them; that the defendant answered such charges and denied all of them; that at the hearing before Parliament the plaintiff withdrew all but three of such charges, but even as to those the House committee unanimously decided in favor of the defendant and against the plaintiff and dismissed the proceedings; that in the month of January, 1925, the defendant, with her mother and with the child, departed from the Dominion of Canada and went to the state of Nevada, where they established a residence, and that while so residing in Nevada the plaintiff, on the 26th day of January, 1925, without service or process on the defendant, caused to have entered the alleged judgment referred to in plaintiff's complaint, ordering the custody of the child to plaintiff, but that such...