Ex parte Atkinson

• Decision Date: 09 October 1948
• Docket Number: 37425.
• Citation: 165 Kan. 678,198 P.2d 158
• Parties: Ex parte ATKINSON. v. SOWERSBY. ATKINSON
• Court: Kansas Supreme Court

198 P.2d 158

165 Kan. 678

Ex parte ATKINSON.

ATKINSON v. SOWERSBY.

No. 37425.

Supreme Court of Kansas

October 9, 1948

Appeal from District Court, Sedgwick County Division No. 3; Clair E Robb, Judge.

Habeas corpus proceeding by Kitchener Atkinson against Grace Sowersby to obtain custody of petitioner's minor daughter. From a judgment quashing respondent's motion to vacate an order providing that petitioner should have physical possession of the child for approximately one year respondent appeals.

Judgment reversed with directions.

Syllabus by the Court.

1. An order sustaining a motion to strike a motion to vacate a prior order is appealable if it is in effect a final order as defined by the statute, G.S.1935, 60-3303.

2. Where a trial court, in a habeas corpus action has entered an order fixing custody of a minor child, 'subject, however to any further or future orders this court shall deem proper in the premises,' a motion by one of the parties, filed several months thereafter to vacate such order and alleging facts then material to the question of custody, should not be stricken on the ground that the question of custody is res judicata.

3. Record examined in a habeas corpus proceeding and held: The trial court erred in sustaining a motion to strike or quash a motion to vacate a prior order of custody.

Henry L. Butler, of Wichita (Enos E. Hook, Sidney L. Foulston and John H. Gerety, all of Wichita, on the brief), for appellee.

William C. Attwater, of Wichita, for appellant.

HOCH Justice.

This is a contest over the custody of an eight year old child--another of those distressing by-products of a broken home. The grandmother who has had the child since it was two years old, appeals from an order quashing her motion to vacate a prior order relating to custody.

Brief statement of the factual background will suffice. Kitchener Atkinson and his wife, Lena, were living in California in 1942, when the wife left for parts unknown, taking their two year old daughter, Rosetta, with her. In 1943 the husband secured a divorce, service upon the wife being by publication. The child being outside the jurisdiction of the court, no order as to custody was then entered. Following the divorce, the husband entered the merchant marine service, and states that he had no knowledge as to the whereabouts of his former wife or of the child until some time in 1947. As subsequently disclosed, the mother brought the child to Kansas and left it with her mother, Grace Sowersby, the appellant here, who has taken care of the child since that time. Lena Atkinson subsequently married a man named Dove, and on December 19, 1946, she filed a petition for a writ of habeas corpus in the district court of Sedgwick County, to secure possession of the child, naming as the defendants her mother, Grace Sowersby, and her brother, Wayne Sowersby. The child's father, Kitchener Atkinson, was not made a party to the action. In their return to the writ, the respondents alleged that they did not then have custody of the child and alleged that on December 18 and prior to the filing of the action, the child had been taken on a visit to Chicago by the petitioner's sister, Betty Jo Sowersby.

In their answer, the respondents further alleged that the petitioner, mother of the child, was a woman of loose morals and not a proper person to have custody. On December 23, 1946, upon hearing the action, the court approved an agreement made between the parties and awarded custody of the child to the grandmother, Grace Sowersby, with permission to the mother to visit the child at all reasonable times and to be permitted to take the child with her during the months of June, July and August, to California or to such other place where she might be living during the summer months, under order that she return the child to Wichita in time to commence each school year there. For reasons not necessary to recite here, the mother did not take custody of the child during the summer months, the child remaining with the maternal grandmother. On December 29, 1947, the father Kitchener Atkinson, brought an action in habeas corpus in Sedgwick County against the grandmother to secure custody of his child. He asserted in the petition that he was not bound by any order of custody entered in the previous habeas corpus proceedings instituted by Lena Dove, since he was not a party to that action.

On December 30, 1947, the trial court sustained respondent's demurrer to the petition on the ground that it did not state a cause of action, but permitted the petitioner to file an amended petition which was thereupon dictated into the record. The respondent then asked for a continuance for the reason that she had not had time to prepare a return to the writ, but the application was denied and she was given leave to dictate a return to the writ into the record. The court proceeded forthwith to hear the action. The petitioner, who has remarried, and his wife Arlena Mae Atkinson, then testified. The court then indicated that it would consider the evidence previously introduced in the habeas corpus action brought by the child's mother, and that it did not wish to hear any further testimony or receive any further evidence in the matter. The court commented that it was going to consider the child's welfare; that it did not know how the father would treat the child but could see what the grandmother had done for the child over a period of four or five years, and that she had given it careful and watchful care; that it was not to the best interests of the child to take it out to a strange home with strange people, a new school system, new students, new teachers; that the father had a right to his child; that while the child is being well taken care of, eventually one of the parents would get the child anyhow; that neither the mother nor the father had cared whether they supported the child or not, but that the father now says he will pay something to help support it that grandparents have no rights as far as their grandchildren are concerned, but he was very sorry for the grandmother; that he would retain jurisdiction 'and pass the case from term to term.' The court then made the following finding: 'that the custody of said minor child remain in the maternal grandmother, Grace Sowersby, Defendant herein, subject, however, to any further or future orders of this Court shall deem proper in the premises. And that the physical possession of said child should be granted to the petitioner, Kitchener Atkinson, the father of said child, for a period of approximately one (1) year to commence at the end of the regular school term of the Wichita public schools, which will be the latter part of May, 1948, and that said petitioner be allowed and permitted to take said child with him back to his residence in California or wherever his legal residence may be in the United States at such time and keep said child with him until the end of the regular school term of the city and state where said petitioner is then living...