Enke, Application of, 9571

• Decision Date: 18 August 1955
• Docket Number: No. 9571,9571
• Citation: 287 P.2d 19,129 Mont. 353
• Parties: Application on Behalf of Max Sieben ENKE and Karen Jean Enke.
• Court: Montana Supreme Court

Page 19

287 P.2d 19

129 Mont. 353

Application on Behalf of Max Sieben ENKE and Karen Jean Enke.

No. 9571.

Supreme Court of Montana.

Submitted July 20, 1955.

Decided July 27, 1955.

Dissenting Opinion Aug. 13, 1955.

As Amended Aug. 18, 1955.

Charles V. Huppe, Leo J. Kottas, Helena, argued orally for petitioner.

Edmond G. Toomey and Michael J. Hughes, William H. Clarke, Helena, argued orally for respondent.

DAVIS, Justice.

Original proceeding by writ of habeas corpus to obtain the custody of two minor children.

On the application of one Stephen Enke made July 2, 1955, a writ of habeas corpus issued out of this court directed to one Jean S. Baucus to inquire into the custody of Max Sieben Enke and Karen Jean Enke, the minor children of Stephen Enke and Jean S. Baucus, formerly Jean S. Enke. On July 6, 1955, in obedience to this writ the respondent, Jean S. Baucus, made return thereto (1) by motion to quash, and (2) without prejudice to that motion by pleading on the merits. To this return a traverse has been made on the part of the petitioner. The matter has been argued orally and on briefs submitted by both the petitioner and the respondent. Submission has now been had for our opinion and judgment.

Hereafter we shall refer to the petitioner, Stephen Enke, as the father, to the respondent, Jean S. Baucus, as the mother.

The material facts we gather from the return and the traverse thereto and from the exhibits submitted at the hearing. They follow.

The mother, then Jean Sheriff, and the father, Stephen Enke, were married in 1940 at Helena, Montana. Subsequently their residence was at Los Angeles, California, where they made their home until May 18, 1944, or thereabouts. To this union there were born the two children who are the subjects of this proceeding. Up to May 18, 1944, or shortly thereafter, their domicil and that of each of their parents as well was in California.

There on April 29, 1944, the father and mother came to the parting of their ways. As of that date a settlement agreement containing this paragraph was executed by them, viz 'The parties are the parents of Max Sieben Enke, aged two and one-half years, and Karen Jean Enke aged three and one-half months. The children are of tender years and husband recognizes that it is natural and proper that wife should have their custody and agrees that wife shall have the sole custody of said children and each of them. In making this agreement husband understands that it is the intention of wife to reside with the said children at least in the immediate future in the State of Montana and that she will take the children to Montana shortly after the execution of this agreement. Husband shall have the right to correspond with the children and the right to visit them occasionally at the place of their residence at reasonable times and in reasonable manner after making arrangements with wife for such visits.'

Subsequently the mother sued for divorce in the Superior Court of Los Angeles County, California, and thereafter on May 18, 1944, was granted by that court upon the default of the father an interlocutory judgment of divorce, in which there is found this decretal paragraph:

'It is further ordered and adjudged that Plaintiff [Jean S. Enke] shall have the sole custody of the minor children Max Sieben Enke, aged 2 1/2 years, and Karen Jean Enke, aged 3 1/2 months, and the right to determine their place of residence, and that Defendant [Stephen Enke] shall have the right to correspond with the said children, and the right to visit them occasionally at the place of their residence at reasonable times and in reasonable manner after making arrangements with Plaintiff for such visits, and this court reserves the right to make appropriate orders for the support of the children.'

By the final judgment in this matter, entered on May 22, 1945, the provision here for the custody of these children was adopted, and thereby 'made binding on the parties affected thereby.'

Consistent with the settlement agreement of April 29, 1944, and the consent of the father given therein, and with the interlocutory judgment of May 18, 1944, the mother returned in May 1944 with her two children to Helena, Montana, where ever since she has made her home. There in 1947 she was married to one John Baucus, with whom she has since lived at Helena and on an adjacent ranch in Montana, as his wife, and with whom there since this marriage she has made a home for the children, Max and Karen, and also for her son by her second marriage, John Frederick Baucus, born September 19, 1949.

About October 1, 1954, the father applied to the California Court at Los Angeles for a modification of the interlocutory decree of May 18, 1944, that he might have the custody of his children during July of each year. Notice of these proceedings was given the mother by service upon her at Helena in Montana. She responded by authorizing an attorney of her selection at Los Angeles to appear for her and resist the father's application. She also offered affidavits when that application was heard, which were received in evidence. Her attorney appeared at the hearing and, we shall assume, cross-examined the father and his witnesses on her behalf.

The mother herself did not in person attend this hearing. Neither of the children was in California at any time after May 1944. No notice or process designed to bring them before the California Court was given or served upon them so far as this record discloses. Neither appeared personally or otherwise at the hearing.

Specifically, neither of these children was in California at the time of the hearing, or when the order modifying the interlocutory decree was made November 23, 1954.

On that date, however, the California Court, proceeding under Cal.Civ.Code, Sec. 138, modified its judgment of May 18, 1944, to provide:

'* * * The defendant may have the physical custody of the minor children for the month of July of each year, beginning July, 1955; the defendant is ordered to provide the necessary transportation to and from the home of the plaintiff. The plaintiff is restrained from registering the minor children in school or elsewhere in any name other than their natural surname of Enke. * * *' Subsequently the father sought to have the children, Max and Karen, turned over to him on July 1, 1955. The mother refused to surrender them. This litigation followed.

In our consideration of this matter we are met first with the mother's motion to quash the writ issued and to dismiss these proceedings. In our view this motion is not well taken. It is accordingly denied.

No particular formality is required to frame a petition sufficient to warrant the issuance of the writ of habeas corpus. Nor are the proceedings themselves marked by adherence to form. State ex rel. Giroux v. Giroux, 19 Mont. 149, 155, 156, 47 P. 798; McDowell v. Gould, 166 Ga. 670, 144 S.E. 206; 39 C.J.S., Habeas Corpus, Sec. 80, pages 626, 627, Sec. 82, page 635; 29 C.J., Habeas Corpus, Sec. 158, pp. 142, 143. Measured by the rule of these authorities we find the petition upon which the writ here issued sufficient and that R.C.M.1947, Sec. 94-101-2, is satisfied.

Moreover, when the writ has issued the function of the petition or application therefor is fulfilled. 39 C.J.S., Habeas Corpus, Sec. 80, page 629; 29 C.J., Habeas Corpus, Sec. 158, p. 143. Thereafter the pleadings or papers before the court whereon the matter is heard are the return made to the writ, which serves the purpose of a complaint on the part of the respondent, and the traverse or other answer to that return tendered by the petitioner. On these papers the court has jurisdiction to proceed. In re Collins, 151 Cal. 340, 342, 90 P. 827, 91 P. 397, 129 Am.St.Rep. 122; State v. Olsen, 53 Idaho 546, 549, 26 P.2d 127; 39 C.J.S., Habeas Corpus, Sec. 88, pages 651, 652; 25 Am.Jur., Habeas Corpus, Sec. 124, pp. 235, 236. Without more then we turn directly to the merits.

There the question for decision is: Did the California Superior Court at Los Angeles have jurisdiction on November 23, 1954, to modify the interlocutory judgment of May 18, 1944, and accordingly give the custody of Max and Karen Enke to the father for the month of July of each year? We conclude, the California Court had no such jurisdiction, that its order of November 23, 1954, was therefore void.

To be specific: When in May 1944 these children were brought by their mother from California to Helena, Montana, there to make their future home with her she acted in entire harmony with the California decree, which gave her the sole custody of these children and the right to determine their place of residence. Restatement, Conflict of Laws, Secs. 146, 32, pp. 211, 57. She acted also with the consent and approval of the father as expressed in the settlement agreement of April 29, 1944.

Accordingly then she lost her California domicil, and acquired a new domicil of choice in Montana. Montana has been her domicil ever since. In re Coppock's Estate, 72 Mont. 431, 434, 435, 436, 234 P. 258, 39 A.L.R. 1152; Restatement, Conflict of Laws, Secs. 29, 9, 15, pp. 54, 17, 32. Likewise in May 1944 the domicil of Max and Karen Enke also was lawfully fixed in Montana. Their domicil too has remained here ever since; for it is settled law that minor children whose parents are divorced take the domicil of the parent to whose custody they have been legally given. R.C.M.1947, Sec. 61-121; In re Metcalf's Estate, 93 Mont. 542, 546, 19 P.2d 905; Restatement, Conflict of Laws, Sec. 32, p. 57. Moreover, these children have never since been physically present within the State of California nor for that matter so far as this record shows out of the State of Montana.

In these circumstances the fundamental question whether the California Court had jurisdiction on November 23, 1954, to make a valid order awarding the physical custody of these children to the father has been answered by different courts...