Duryea v. Duryea

• Decision Date: 18 July 1928
• Docket Number: 5030
• Citation: 46 Idaho 512,269 P. 987
• Parties: HANORA DURYEA, Appellant, v. JOHN C. DURYEA and RICHARD KELLOGG, Respondents
• Court: Idaho Supreme Court

269 P. 987

46 Idaho 512

HANORA DURYEA, Appellant, v. JOHN C. DURYEA and RICHARD KELLOGG, Respondents

No. 5030

Supreme Court of Idaho

July 18, 1928

HABEAS CORPUS-CUSTODY OF CHILDREN-DIVORCE-EFFECT OF FOREIGN CUSTODY ORDER-DOMICILE.

1. Foreign judgment need not be accorded recognition in court of forum until it appears that judgment was rendered by court of competent jurisdiction, questions of comity and respect to be accorded foreign judgments not being applicable where court awarding judgment was without jurisdiction.

2. Law governing status of individual is law of state of his domicile, "status" of individual in a legal sense being legal relation in which that individual stands to the rest of the community.

3. Court must have dominion over legal situs of litigants before it can presume to adjudicate "status."

4. In cases involving custody of children, it is usually essential that their actual situs as well as their legal "status" be within the jurisdiction of the court before its decree will be accorded extraterritorial recognition.

5. Resident of Idaho who was arrested on charge of wife desertion and extradited to Nevada, where he was confined in jail, was domiciled in Idaho, notwithstanding physical presence in Nevada in response to legal process.

6. Where children were physically present in Idaho and father confined in jail in Nevada, was domiciled in Idaho, divorce decree entered in state of Nevada, in so far as it attempted to determine question of children's custody, was a nullity and was not entitled to extraterritorial recognition under C. S., sec. 4655, giving father right to fix children's domicile, though section 4681 grants equal rights to both parents in matter of custody of children.

7. In habeas corpus proceedings by wife to recover custody of children under foreign divorce decree, court, where foreign decree was void on question of children's custody, could inquire into history and character of parents.

8. Where in habeas corpus proceedings plaintiff testified relative to decision in another case on cross-examination admission in evidence of the decision was not prejudicial error.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Dana E. Brinck, Judge.

Habeas corpus for the custody of minor children. Judgment for defendants. Affirmed.

Affirmed.

Delana & Delana and Barber & Barber, for Appellant.

In the absence of proof as to what the laws of a sister state are, it will be presumed that the laws of such sister state are the same as Idaho's. (Jones on Evidence, 2d ed., sec. 321; Moore v. Pooley, 17 Idaho 57, 104 P. 898; Douglas v. Douglas, 22 Idaho 336, 125 P. 796.)

Because the mother has the same right to the custody of the children under a statute like Idaho's, the removal of the children by the father does not change the domicile for purposes of divorce or habeas corpus, and domicile of children remains in the state where the mother lives and from which the children have been removed. (White v. White, 77 N.H. 26, 86 A. 353, at 355.

Where the court has personal jurisdiction of both parents in a divorce action, it has jurisdiction to award custody of the children, even though the children are not in the state. ( State v. Hall (Mo.), 257 S.W. 1047, at 1055; State v. Rhoades, 29 Wash. 61, 69 P. 389; Kell v. Kell, 179 Iowa 647, 161 N.W. 634.)

Oppenheim & Lampert and E. O. Smith, for Respondents.

The courts of this state are not bound by an order granting custody of children in a divorce proceeding of another state, when the children are now, and were pending the divorce proceedings, in the state. (Seeley v. Seeley, 30 App. D. C. 191, 12 Ann. Cas. 1058; Certiorari denied, 209 U.S. 544, 28 S.Ct. 570, 52 L.Ed. 919; Payton v. Payton, 29 N.M. 618, 225 P. 576; Anthony v. Tarpley, 45 Cal.App. 72, 187 P. 779.)

GIVENS, J. Wm. E. Lee, C. J., and Taylor, J., concur. T. BAILEY LEE, J., Justice Budge, Dissenting.

OPINION

GIVENS, J.

Plaintiff- appellant seeks by habeas corpus to obtain from John C. Duryea the possession of their two minor children, Cleora Sarah and Thomas Alfred Duryea.

Early in 1921, appellant and Duryea, with the children, were residing at Coney Island, near Reno, Nevada. At that time, apparently, the parties had mutually resolved to remove the family home to Denver, but before this could be accomplished Duryea departed from Reno, taking the children with him, and finally arrived at Glenn's Ferry in this state where they have since remained.

In April, 1925, appellant, learning for the first time that the children had been brought into this state, came to Glenn's Ferry and attempted forcibly to remove them. Duryea resisted her efforts and while she remained at Glenn's Ferry instituted in the district court in this state a divorce action against her, and in such action an order was entered placing the children in the custody of Richard Kellogg at Glenn's Ferry pending its outcome.

Shortly thereafter, at the instigation of appellant, Duryea was arrested on a charge of wife desertion, and, over his opposition, extradited to Nevada. This criminal charge was later dismissed, but while Duryea was confined in a Reno jail he was served with process in a divorce action commenced in Nevada by appellant. That action for divorce and the custody of the children Duryea resisted, setting forth that the children were not within the jurisdiction of the Nevada courts. It should be borne in mind that the children at that time were in Idaho, within the jurisdiction of an Idaho court and actually in its custody.

The Nevada court granted appellant a divorce and awarded her the custody of the children. Duryea refused to surrender them, whereupon appellant commenced this action of habeas corpus, relying on the Nevada decree.

At the hearing the trial court received evidence bearing on the character and fitness of the respective parties and permitted this inquiry to range over a period of many years, much of it dealing with events prior to the Nevada decree. This extensive delving into the past developed, among other things, that appellant had been a party to the case of Peery v. Peery, 27 Colo. App. 533, 150 P. 329. The opinion of the supreme court of Colorado in that case was admitted in evidence and appellant was cross-examined at length with regard to matters therein disclosed.

At the conclusion of the hearing, a decree was entered awarding the custody of the children to Duryea, specifying as a condition that they be kept at the home of Kellogg and be not moved from the jurisdiction of the court.

The appeal raises numerous questions of error, among them the question of the recognition to be accorded the judgment of the Nevada court.

Before a foreign judgment need be accorded recognition in a court of the forum, it must appear that the judgment was rendered by a court of competent jurisdiction. Questions of comity and the respect to be accorded foreign judgments do not arise where it appears that the court awarding judgment was without jurisdiction. (Milner v. Gatlin, 139 Ga. 109, 76 S.E. 860.) Such a judgment is a nullity and quite obviously cannot be enforced in another jurisdiction.

Questions relating to the respect to be accorded, extraterritorially, to decrees awarding custody of children have arisen chiefly in two classes of cases. In most instances the parents, or at least one of them, and the children, were before the court making the decree. In this class of cases some few courts have refused to be bound by a foreign decree, holding that as soon as the child comes within its jurisdiction, the question of its status becomes one for the local court to determine in the best interests of the child. (In re Alderman, 157 N.C. 507, 73 S.E. 126, 39 L. R. A., N. S., 988.)

The rule that may be denominated the majority rule, however, in this class of cases, recognizes the conclusiveness of the foreign decree and holds that it may be enforced extraterritorially, providing no change has taken place in the circumstances which would warrant a reopening of the matter. This rule affords exactly the same recognition to a decree of a foreign court that would be accorded to an adjudication within the forum, for it is well established that a decree awarding custody may be modified or changed by the court making it as the circumstances may warrant.

The second class of cases involves facts similar to those in the case at bar, wherein an attempt has been made to decree the custody of children not within the jurisdiction of the court. In this class of cases it is almost uniformly held that such a decree need be accorded no extraterritorial recognition.

This holding is supported by principle as well as by authority. In all cases involving divorce and the custody of children, the court has before it for consideration a status, or more properly a double status. Minor, in his Conflict of Laws (1901), p. 208, says of a proceeding of this kind:

"Being nothing less than a determination of the guardianship of the children, it is a question of double status, relating no less to the status of the children than to that of the respective parents. The decree for the children's custody therefore is as much a decree in rem as is the divorce itself, but with a more extended res."

To the same effect is 2 Bishop on Marriage and Divorce, sec. 1189.

It is elementary that each state may determine the status of its own citizens. (Milner v. Gatlin, supra.) The law that governs the status of any individual is the law of his legal situs, that is, the law of his domicile. (Minor supra, p. 131.) At least this jurisdictional fact--dominion over the legal situs--must be present before a court can presume to adjudicate a status, and in cases involving the custody of...