Dunham v. Dunham

• Decision Date: 03 June 1922
• Court: Connecticut Supreme Court
• Parties: DUNHAM v. DUNHAM.

117 A. 504

97 Conn. 440

DUNHAM v. DUNHAM.

Supreme Court of Errors of Connecticut.

June 3, 1922

Appeal from Superior Court, Litchfield County; Isaac Wolfe, Judge.

Suit by Ella Blair Dunham against Miles Dunham. From a judgment for plaintiff, defendant appeals. Error, and cause remanded for dismissal.

The petition sets out that the petitioner and the respondent were married in 1908, and have one child now 10 years of age; that in 1915 the superior court for the county of Berkshire, in the commonwealth of Massachusetts, granted a divorce to the respondent in this action for the cause of cruel and abusive treatment, and ordered that the custody of their minor child be given to the petitioner in this action from the first Monday in September to the 15th of June next following in each year, and to the respondent in this action at other times, each parent to have the right to see the child at convenient opportunities while in the custody of the other, and the petitioner in this action having permission to take the child without the commonwealth while in her custody that at the time of this libel for divorce and this decree the respondent in this action was a resident of the town of Sheffield, Berkshire county, Mass., and the petitioner in this action resided in the town of North Canaan, Litchfield county, Conn., but since said decree was made and for more than three years next before the date of this petition both parties have resided in Connecticut, and during the same the minor child has lived with one or the other of his parents in this state. The petition further alleges that the respondent is not a fit person to have the custody of the minor child and has refused to give her the custody of the child according to the terms of the Massachusetts decree, and that the petitioner is a fit person to have the exclusive custody of the child, and the child desires to remain with her. She claimed the exclusive custody of the child and an injunction to restrain the respondent from interfering therewith.

The respondent filed: (a) An answer denying, among other matters his own unfitness and the petitioner's fitness to have the custody of the child; (b) a plea to the jurisdiction because, among other reasons set out, the superior court for Litchfield county had no jurisdiction to change the decree of the superior court in Massachusetts concerning the custody of the child; and (c) a demurrer to the relief claimed by the petitioner because the superior court in this state has no jurisdiction to grant the relief prayed for. He concluded his pleading by asking that the petition be dismissed for want of jurisdiction.

It also appears in the pleadings that each of the parties had at different times obtained from the Court of Common Pleas in Litchfield County a writ of habeas corpus intended to enforce compliance by each with the terms of the Massachusetts decree concerning the custody of the child.

Frank B. Munn, of Winsted, for appellant.

Samuel A. Herman, of Winsted, and J. Clinton Roraback, of Canaan for appellee.

BURPEE, J.

Properly disregarding some immaterial allegations in the pleadings, the court below first considered the question whether it had jurisdiction to act upon this question. It held that it had full power and authority to determine the cause. That decision is assigned as a reason of appeal.

In Connecticut since the earlies colonial days, " a benign yet arbitrary power, which every sovereignty exercises, to take care of the persons and estates of infants," has been conferred by statute upon courts of probate. Olmsted v. Olmsted, 38 Conn. 309, 319. Primarily the parents are entitled to the custody of their minor child, and formerly, in case of controversy, the father to the exclusion of the mother.

Since 1901 the rights of both parents have been equal; and upon the death of either the surviving parent becomes the sole guardian.

The right of custody has never been an absolute right, which could be bargained away or disposed of or transferred by either parent, except by giving in adoption with the approval of a court of probate in a manner prescribed by statute. Johnson v. Terry, 34 Conn. 259, 263; General Statutes, § § 4878, 4879.

After the death of both parents, courts of probate have always been empowered to appoint a guardian to have the custody of the person of a minor orphan. Acts and Laws, 1750, p. 85; General Statutes, § § 4863, 4864.

This jurisdiction and power of the probate court has been long established, has been expressed from time to time in terms adapted to conditions which experience has revealed, is general and ample, and evidently intended to cover the requirements of all circumstances. General Statutes, c. 248.

From any decree of the probate court any person aggrieved may appeal to the superior court. General Statutes, § 5071. The appellate court will take the place of the court of probate and try the case de novo, but it has no greater powers. Davis' Appeal, 39 Conn. 395, 401; Mack's Appeal, 71 Conn. 122, 132, 41 A. 242; Wilson v. Warner, 84 Conn. 560, 80 A. 718.

To test the right to retain the custody of a minor child, the writ of habeas corpus has long been used and approved as the form of proceeding. Fields v. Law (1796) 2 Root 320, 323; Kelsey v. Green (1897) 69 Conn. 291, 298, 37 A. 679, 38 L.R.A. 471. In such proceedings the trial court is not bound by a previous decree of a court of another state when the child has since become a resident of this state. In such conditions, the welfare of the ward of the state is the paramount consideration, whether the controversy be between parent and parent or between a parent and a stranger. And, in reaching a conclusion as to what will best subserve the best interests of the child, " its own wish and choice may be consulted, *** if it be of an age and capacity to form a rational...