Danson v. Danson

• Decision Date: 13 November 1918
• Citation: 80 So. 62,76 Fla. 449
• Parties: DANSON v. DANSON et al.
• Court: Florida Supreme Court

80 So. 62

76 Fla. 449

DANSON v. DANSON et al.

Florida Supreme Court

November 13, 1918

Error to Circuit Court, Duval County; D. A. Simmons, Judge.

Application for writ of habeas corpus by Walter T. Danson against Elizabeth Danson and another. Judgment for defendants, and plaintiff brings error. Affirmed.

Syllabus by the Court

SYLLABUS

In habeas corpus proceedings for the custody of a minor child where the petitioner moves for an award of the custody to him upon the return or answer to the writ, the movant thereby admits the material averments of the return or answer to be true.

It appearing that the person to whom the father intends to commit the custody of his minor child, if the child is awarded to him, is an improper person for such custody, and it also appearing that the father is at the time engaged in the United States military service, an award of the present custody of the child to a suitable person is affirmed.

COUNSEL John E. Hartridge, of Jacksonville, for plaintiff in error.

H. L Anderson, of Jacksonville, for defendants in error.

OPINION

WHITFIELD J.

In an application for a writ of habeas corpus:

'The petition of Walter T. Danson of Duval county, Fla complaining, shows that Walter T. Danson, Jr., aged three years, the son of petitioner, is unlawfully restrained of his liberty by Elizabeth Danson and Effie W. Schumacher, of the city of Jacksonville, Duval county, Fla., and that said Walter T. Danson, Jr., is detained for no criminal or supposed criminal matter.

'Petitioner further shows that he obtained a decree of divorce from the said Elizabeth Danson, in the circuit court of the Eleventh judicial circuit in and for Palm Beach county, Fla., and the final decree in said suit for divorce on the part of petitioner was signed on the 31st day of May, A. D. 1917, by H. Pierre Branning, judge of said circuit court, and was duly recorded in the circuit court minutes of said Palm Beach county, on page 7, June 1, 1917; that under and by virtue of said decree it was ordered, adjudged, and decreed that Walter T. Danson, petitioner herein, have the care, custody, control, and education of the minor child, Walter T. Danson, Jr. A certified copy of which said decree is hereto attached and marked 'a' and made a part of this petition as fully as if herein set forth.

'Petitioner further shows that the said Elizabeth Danson some time heretofore, to wit, on or about the latter part of March, 1918, petitioner believes about the 22d of March, in company with said Effie W. Schumacher, called at the house of Elizabeth Danson Womble, sister of petitioner, at 1932 Groover avenue, Jacksonville, Duval county, Fla., where the said Walter T. Danson, Jr., had been confided to the care of Elizabeth Danson Womble, sister of petitioner, and without the consent of petitioner or any other authorized thereto, took said child away and have had the custody of said child ever since and refuse to deliver him up.

'Petitioner further represents that since then he has been called into the service of the country and is a member of Thirtieth Company, 156th Depot Brigade, now encamped at Camp Jackson, Columbia, S. C.; that in order to protect said child and have this proceeding brought, after he was called, but before leaving to enter the service, he executed a power of attorney, giving to his sister Elizabeth Danson Womble the care and custody of said child and authorizing her to proceed to procure the custody of said child and to retain, take care of, and raise said child.

'Petitioner therefore prays a writ of habeas corpus, pursuant to the statute in such cases made and provided, to be directed to the said Elizabeth Danson and Effie W. Schumacher, to bring the said Walter T. Danson, Jr., forthwith before the court here and to show the cause of his detention, and to submit to and receive what the law may require.'

A copy of a decree of the circuit court for Palm Beach county attached as an exhibit to the petition granted a divorce to the petitioner from Elizabeth Danson and decreed that Elizabeth Danson 'is a person wholly unfit to have the care, custody, control, or education of a child,' and that Walter T. Danson 'should have the care, custody, control, and eduction of his minor child,' and that 'Walter T. Danson have the care, custody, control, and education of the minor child, to wit, Walter T. Danson, Jr., without any interference on the part of the defendant, until the further order of this court.'

A writ was issued, and the defendants answered as follows:

'Come now the respondents, Effie W. Schumacher and Elizabeth Danson, in the action above styled, and show to the court that in a certain cause in equity lately pending in this honorable court, wherein Effie W. Schumacher was petitioner, a final decree was in said cause duly and regularly entered, on the 2d day of April, 1918, and before the filing of the petition in this action, whereby and wherein the care, custody, and control of the infant, Walter T. Danson, Jr., was awarded and given unto the respondent Effie W. Schumacher; that said final decree was on the 2d day of April, 1918, duly entered and recorded in the rolls of said chancery court, and respondent Effie W. Schumacher says that at all times since the 2d day of April, 1918, she has had the sole custody and control of the infant, Walter T. Danson, Jr., under and by virtue of said final decree, and that said decree has never been reversed or modified, and the respondent Effie W. Schumacher says that, at the time of the filing of the petition and the issuance of the writ in this action, her control and custody of the infant, Walter T. Danson, Jr., was by virtue of said final decree, which said decree this respondent says she is advised cannot be attacked or its provisions and terms questioned in this proceeding, a certified copy of which said decree is hereto attached and made a part hereof, marked 'Exhibit A.'

'Respondent Elizabeth Danson says that since the 2d day of April, 1918, she has not had in her custody or control the infant, Walter T. Danson, Jr.; that said custody and control has been exercised solely and only by Effie W. Schumacher, and not by this respondent, and both respondents say that it is not true, as in the petition in this proceeding averred, that the infant, Walter T. Danson, Jr., was at the time of the filing of the petition and issuance of the writ in this action unlawfully restrained of his liberty by these respondents.

'Respondents admit that by a final decree, which was entered in the ciruit court of Palm Beach county, Fla., on June 1, 1917, that the care, custody, and control of the infant, Walter T. Danson Jr., was awarded by said decree unto petitioner, Walter T. Danson, but in this behalf respondents say that said final decree was fraudulently procured and entered, at the instance of the petitioner, Walter T. Danson, in this, that petitioner, Walter T. Danson, represented to the respondent Elizabeth Danson, who was then his wife, that, if the respondent Elizabeth Danson would consent to the entry of a final decree in the divorce proceedings mentioned in the petition, the final decree in said divorce proceedings would make no provision for the care and custody, control, and education of the child, Walter T. Danson, Jr., and that respondent Elizabeth Danson might have the custody, care, and control and education of said minor child with the privilege to the petitioner, Walter T. Danson, to visit and see said child at all convenient times, and that confidings in the promise and representations aforesaid of said petitioner that said final decree could be entered in accordance with the above agreement, the respondent Elizabeth Danson left Palm Beach county, and came to Duval county, Fla., before the entry of said...