Evens v. Keller., 3605.

• Decision Date: 07 December 1931
• Docket Number: No. 3605.,3605.
• Citation: 6 P.2d 200,35 N.M. 659
• Parties: EVENSv.KELLER.
• Court: New Mexico Supreme Court

35 N.M. 659

6 P.2d 200

EVENS

v.KELLER.

No. 3605.

Supreme Court of New Mexico.

Dec. 7, 1931.

Syllabus by the Court.

1. A judgment in habeas corpus proceedings instituted to test the right of respective claimants to the custody of a minor is appealable.

2. A former adjudication in habeas corpus on the rights of rival claimants to the custody of a minor is conclusive between such parties in a subsequent proceeding involving the same question on the state of facts existing at the time of the former adjudication.

3. If since the date of the former adjudication in such an action a substantial change in conditions has occurred calculated to affect materially the minor's welfare, the court may in subsequent hearing and by reason of such changed conditions render such decree as the minor's welfare demands.

4. Under full faith and credit clause of Federal Constitution, judgment of a court of sister state awarding custody of child in habeas corpus proceedings is entitled to the same effect in this state as in the state of its rendition on the state of facts then existing.

5. Where respondent, following an adverse decision in habeas corpus over custody of child in Colorado, flees with the child into this state and procures adoption of said child, the decree of adoption is not res adjudicata against petitioner as to the facts on which it is based, and, in the absence of a showing of changed conditions arising since date of Colorado decree, such decree is binding on the parties, and entitles petitioner to child's custody in habeas corpus hearing prosecuted in this state.

Appeal from District Court, McKinley County; Holloman, Judge.

Habeas corpus proceeding by George C. Evens against Cora L. Keller to recover the custody of Alice L. Evens, a minor. Judgment for the respondent, and the petitioner appeals.

Reversed, and cause remanded, with directions.

Colorado decree in habeas corpus proceeding determining right to minor's custody held conclusive, in absence of showing of subsequent change in conditions.

A. T. Hannett, of Albuquerque, and A. L. Zinn, of Gallup, for appellant.

H. C. Denny and H. S. Glascock, both of Gallup, for appellee.

SADLER, J.

This is a habeas corpus proceeding by appellant, hereinafter styled petitioner, instituted in the district court of McKinley county, N. M., against appellee, hereinafter styled respondent, to recover the custody of Alice L. Evens, a minor, who will be so designated hereinafter in this opinion. The minor, a little girl about ten years of age at the time of the trial, was born in Herculaneum, Mo. Her parents are both dead. Her father died at De Soto, Jefferson county. Mo., on December 30, 1926, and the mother died at the same place on March 13, 1928. Both parents were residents of De Sote, Mo., at the time of their deaths. They left surviving them Alice L. Evens, a minor daughter, then about eight years of age, and a minor son, then about eighteen years of age. The petitioner is a brother of the minor's father and the respondent is a sister of the minor's mother.

Shortly following the death of the mother, and on March 19, 1928, the petitioner was appointed guardian of the persons and estates of the minors aforesaid by order of the probate court of Jefferson county, state of Missouri. The respondent, then a resident of Sheridan, in the state of Colorado, went to Missouri to be with her sister, mother of the minor, during her last illness, arriving a short time prior to her sister's death. At that time, and following the death of the minor's mother, the respondent expressed a desire to adopt little Alice. In this she was opposed by the guardian. Thereafter she returned to her home in Colorado, and soon after her return began to negotiate with petitioner for permission to have the child pay her a short visit in that state. The petitioner consulted with the probate judge who had appointed him guardian in Missouri. He approved the visit provided petitioner should have respondent disclaim any purpose of attempting to retain custody of the child. In a letter of June 23, 1928, addressed to petitioner, the respondent wrote concerning the contemplated visit of the child. In this letter she expressly disclaimed any design or intent to adopt the child, and manifested unmistakably the purpose to return her to her guardian at the end of a three weeks' visit. On the faith of this letter, petitioner permitted the child to visit respondent in Colorado. Within three days after her arrival in Colorado, the respondent petitioned the probate court of Arapahoe county, Colo., for letters of guardianship of the person and estate of the minor, which were granted to her. Shortly following her appointment as guardian, and on August 20, 1928, she secured an order of adoption of said minor from the county court of Arapahoe county, Colo. All of this was done without advice or notice to petitioner. When information of what had been done reached him, it came from a source other than respondent.

On November 20, 1928, petitioner instituted against respondent habeas corpus proceedings in the district court of Arapahoe county, Colo., to recover the person of said minor. The respondent appeared, and after full hearing, in which the court made its findings of fact and conclusions of law, said district court, on June 25, 1929, awarded the custody of said minor to the petitioner herein. Thereupon the respondent fled the jurisdiction of the Colorado courts, taking said minor with her to Gallup, McKinley county, N. M. In contempt proceedings against her in Colorado wherein service was had through her husband who remained behind, she was adjudged guilty of contempt, fined $500, and ordered committed to jail in Arapahoe county, Colo., until said fine was paid and the custody of the minor delivered into the hands of petitioner.

Following respondent's arrival at Gallup, McKinley county, N. M., one Sadie L. Johnson, her sister, made application for letters of guardianship of the person of said minor, and such letters were granted to her by the probate court of said county. Thereafter, and on August 12, 1929, the respondent herein made application to the district court of McKinley county, N. M., for adoption of the minor. Respondent's sister as New Mexico guardian consented thereto, and a decree adopting her unto the respondent was made by said district court on December 10, 1929.

It was not until some time in the month of October, 1929, following the flight of respondent with the child from Colorado, that petitioner learned of their whereabouts. On March 19, 1930, petitioner filed in the district court of McKinley county his petition for a writ of habeas corpus against respondent for the custody of said minor in which the history of the controversies between them over the custody of this child was pleaded substantially as hereinabove set forth. The petition set forth the appointment of petitioner as guardian in Missouri, and, in addition, pleaded a copy of the judgment of the district court of Arapahoe county, Colo., entered in the habeas corpus proceedings there, and relied upon the same as res adjudicata between the parties over the right to custody of the child. The respondent made return to the writ admitting custody of the minor and relying upon the decree of adoption rendered by the district court of Mckinley county as justification for such custody. She made separate answer to the petition admitting petitioner's residence in Missouri and her residence at Gallup, denying petitioner's appointment as guardian of the minor in Missouri, denying the allegations of the petitioner with reference to the habeas corpus proceedings in Colorado, and asserting affirmatively as a defense the rendition by the district court of McKinley county of the decree adopting said minor unto the respondent. The district court of McKinley county, after a full hearing, awarded the custody of the minor to the respondent. Its judgment embraced findings of fact and conclusions of law, and from such judgment the petitioner has prosecuted this appeal.

[1] A question of practice should be first determined. It is insisted by the respondent that no right of appeal lies from an order of the district court dismissing a writ of habeas corpus. She cites several New Mexico cases in support of her contention, but each of them is a case where habeas corpus proceedings were instituted by individuals seeking freedom from an alleged unlawful detention by officers of the law. The petitioners, seeking to avail themselves of the writ, were prisoners in custody. There is a well-recognized distinction between that class of cases in which the judgment lacks the finality essential to review and cases where the remedy of habeas corpus is invoked to determine the custody of a child. In cases of the kind last mentioned, the action is in effect and in fact one between private litigants in which the public has no concern. The judgment rendered in such a case constitutes a final adjudication on the state of facts then existing. It is well established that an appeal lies from such a judgment. 29 C. J. 185; 12 R. C. L. 1257; Tillman v. Walters, 214 Ala. 71, 108 So. 62; Cormack v. Marshall, 211 Ill. 519, 71 N. E. 1077, 67 L. R. A. 787, 1 Ann. Cas. 256.

We have heretofore entertained appeals from orders dismissing the writ where it was invoked to settle and determine the right to the custody of minor children. Mylius v. Cargill, 19 N. M. 278, 142 P. 918, L. R. A. 1915B, 154, Ann. Cas. 19161B, 941; Focks v. Munger, 20 N. M. 335, 149 P. 300, L. R. A. 1915E, 1019. We therefore hold that the order made in this case was appealable.

[2][3] Turning then to the merits of the appeal, we find each party thereto relying upon the judgment of a particular court as decisive of his or her claim to the custody of the child. Petitioner relies upon the judgment of the district court, of Arapahoe county, Colo., awarding him the child's custody in habeas corpus...