Crocker v. Crocker

• Decision Date: 19 March 1952
• Docket Number: No. 4370.,4370.
• Citation: 195 F.2d 236
• Parties: CROCKER v. CROCKER.
• Court: U.S. Court of Appeals — Tenth Circuit

195 F.2d 236 (1952)

CROCKER v. CROCKER.

No. 4370.

United States Court of Appeals Tenth Circuit.

March 19, 1952.

William Rann Newcomb, Denver, Colo., for appellant.

No appearance for appellee.

Before BRATTON, HUXMAN and PICKETT, Circuit Judges.

HUXMAN, Circuit Judge.

This is an appeal by Helen L. Crocker, plaintiff below, from the judgment of the trial court, dismissing her complaint for failure to state a cause of action. For the purpose of considering the correctness of the court's ruling, all facts of the complaint well pleaded must be taken as true.

The complaint alleged that plaintiff and defendant, Morris R. Crocker, were husband and wife; that they were the parents of Theodore Joseph Crocker; that on August 8, 1945, they entered into a written separation agreement, which among others, provided that the custody of Theodore Joseph Crocker, then three years old, should be given to plaintiff, subject to reasonable visitation upon the part of defendant, Morris R. Crocker; that the minor child, together with its parents, was domiciled in Madison County, Illinois; that on August 24, 1945, plaintiff was granted a divorce in the Circuit Court of Madison County, Illinois; that said court had jurisdiction over the parties to the action and had jurisdiction to determine the custody of the minor child; that the decree of the Illinois Court awarded custody of the minor child to plaintiff.

The complaint further alleged that on August 23, 1945, anticipating the custodial order and in violation of their agreement, by means of deceit and trickery, and without knowledge or consent on plaintiff's part, defendant unlawfully and forcibly removed the minor child from the State of Illinois, without intent to return, and concealed his whereabouts from plaintiff. The complaint set out the efforts and expenses incurred by plaintiff, including the expense of a habeas corpus proceeding in the Colorado Courts¹ to recover possession of the child, in the amount of $2,000. The complaint alleged that plaintiff was deprived of the custody, possession and companionship of her child, had suffered outrage, insult and humiliation to her damage in the additional amount of $8,000, for all of which she prayed judgment. The separation agreement and judgment of the Illinois Court were introduced in evidence before the trial court below. On August 24, the day on which the decree of divorce was entered, there was filed in the Illinois Court defendant's entry of appearance, waiving the issuance of summons and submitting himself to the jurisdiction of the court. On the same day, there was also filed in court defendant's affidavit as to military service, stating that he was a resident of Jerseyville, Illinois; that he was an employee of the Shell Oil Company at Wood River, Illinois, and that he was not in the military service of the United States.²

The trial court filed no opinion and assigned no reasons of record for its conclusions. From a narrative statement of facts in the abstract, it appears that the grounds of its judgment were that at common law the father was entitled to the custody of his minor children and that appellant, therefore, had no cause of action against him, if he took the child from her, as he did, before the decree awarding its custody to the wife was entered. The court seems to have taken the further view that appellant could not base her cause of action on the separation agreement, since by necessary implication the separation agreement was subject to the approval of the divorce court in the contemplated divorce proceeding and independently did not create any right in the mother for custody of the minor child.

At common law the father was the custodian of the minor children. The common law inhibition against the right of a husband and wife to contract with each other has been generally removed. The modern trend is to hold that a husband and wife may contract with each other with respect to the custody of their minor...