Ex parte Butts

• Decision Date: 17 November 1955
• Docket Number: No. 9434,9434
• Citation: 129 Mont. 440,289 P.2d 949
• Parties: Application of Juanita Collins BUTTS for a Writ of Habeas Corpus. Juanita Collins BUTTS, Applicant and Appellant, v. Merle L. COLLINS, Respondent.
• Court: Montana Supreme Court

Page 949

289 P.2d 949

129 Mont. 440

Application of Juanita Collins BUTTS for a Writ of Habeas Corpus.

Juanita Collins BUTTS, Applicant and Appellant, v. Merle L. COLLINS, Respondent.

No. 9434.

Supreme Court of Montana.

Submitted May 17, 1955.

Decided Nov. 17, 1955.

Shallenberger & Paddock, Missoula, Wm. F. Shallenberger, Missoula, argued orally for appellant.

John W. Bonner, Helena, argued orally for respondent.

ANGSTMAN, Justice.

This appeal is by applicant from a decree in habeas corpus. Appellant was formerly the wife of respondent and the mother of three minor children of the parties. Appellant and respondent were divorced in Oregon by decree entered on June 19, 1952, wherein the appellant was given the care and custody of the minor children.

It is alleged in the petition for the writ that respondent had persistently refused to surrender the children to the custody of the petitioner and has removed and secreted them for many months; that the said minor children are now in the care and custody of the respondent and his agent, Lauretta Gable, near Thompson Falls, which care and custody is in violation of the order of custody given and made in the decree of divorce.

Upon the filing of the petition for the writ and the hearing of some oral evidence, ex parte, on the 25th day of April 1954, the court issued the order granting the writ and made it returnable on the 26th day of April at 9:30 a. m. On the return day the respondent appeared and through his counsel requested a continuance of the hearing in order to enable him to prepare his defense and to obtain witnesses, many of whom resided in the State of Oregon. This request was granted and the hearing continued until May 10th at 9:30 a. m. The court however proceeded to hear the evidence submitted on behalf of applicant, the substance of which was to sustain the allegations of her petition. On advice of counsel respondent refused to testify as a witness for appellant on the ground that this testimony might tend to incriminate him. The court by its temporary order granted the custody of the children to the mother until the 10th day of May, and allowed her to take them without the State of Montana and to the State of Oregon with the promise and assurance that they would be in court at 9:30 a. m. on the 10th day of May.

On the 10th day of May applicant failed to appear at the hearing in person, and failed to present the children in court. Her counsel announced to the court that he had a telegram from his client stating that she was unable to be present at the hearing but giving no reason for her inability to be there. In the meantime, and on May 7th, respondent filed his answer in which he denied most of the allegations of plaintiff's petition and alleged affirmatively that the Oregon court was without jurisdiction to award custody of the children for the reason that the children were without the State of Oregon at the time the decree of the court was rendered. It also alleged that petitioner is not a fit and proper person to have the care and custody of the minor children and that she abandoned them on the 5th day of October, 1951, without cause and left them in the care and custody of respondent.

On the 10th day of May the court proceeded to hear evidence offered on behalf of respondent in support of the allegations of his answer. Applicant offered no further evidence but her counsel cross-examined some of respondent's witnesses. The court, by its decree, declared that petitioner is an unfit person to have the care and custody of the minor children; it found that the respondent is a fit and proper person to have the custody; that applicant is in contempt of the court for failure to comply with the order made on the 26th of April, permitting her to take the children to Oregon for a period of two weeks; it denied the writ of habeas corpus to applicant and awarded the custody of the children to respondent. This appeal is from that decree.

At the hearing it developed that the respondent did not contest the divorce action in person, but did employ a lawyer who appeared in his behalf. Respondent's testimony was to the effect that while the divorce action was pending his lawyer advised him that he could do nothing for him and that 'if you want to keep those children your only chance is to get away from her, because it's a spite case on her part, and if she can't reach you then I think she will let you alone.' Acting on this advice, respondent left the State of Oregon in May 1952 and took the children with him, first to Idaho and then to the State of Montana.

His contention that the Oregon court had no jurisdiction to award the custody of the children while they were thus absent from the State of Oregon is without merit. The rule applicable is stated in 27 C.J.S., Divorce, § 333, p. 1299, as follows: 'Where the court has jurisdiction of the parties and subject matter, removal of the children of the parties from the state prior to the decree does not deprive the court of jurisdiction of fix the custody of such children or disentitle the decree to recognition in another state.' To the same effect is the note in 4 A.L.R.2d 31.

As was said in Roberts v. Roberts, 300 Ky. 454, 189 S.W.2d 691, 692 (a case which we cited and quoted from with approval in Talbot v. Talbot, 120 Mont. 167, 181 P.2d 148), 'To hold otherwise would make it virtually impossible to arrive at a final determination of the custody of a child in a divorce proceeding, because all that the party who had the custody of the child would have to do would be to remove the child from the jurisdiction of the court before judgment was entered, even though the issues had been joined, proof taken and the cause submitted.'

We have recognized this rule in a case where the children were removed from the state wrongfully after the decree was entered in State ex rel. Nipp v. District Court, 46 Mont. 425, 128 P. 590, Ann.Cas.1916B, 256. Contrary to the contention of respondent, these children were never residents of the State of Montana, but at all times have been residents of the State of Oregon. The mother, who was awarded the custody of the children, had the right to fix their residence. In re Metcalf's Estate, 93 Mont. 542, 19 P.2d 905; R.C.M. 1947, § 61-121. And the mother's residence determines that of the children. 28 C.J.S., Domicile, § 12, p. 22, note 37. Certainly they were residents of the State of Oregon when the Oregon court awarded the custody to their mother. Their residence could not be changed except by the mother. Ex Parte Lorenz, 194 Or. 355, 241 P.2d 142, 242 P.2d 200. And this was never done. The Oregon court had jurisdiction to decree the custody of the children in the divorce action. That decree is entitled to full faith and credit here. Art. IV, § 1, of the United States Constitution. Any question of the fitness of the mother to have the care and custody of the children and her claimed abandonment of them should have been brought to the attention of the Oregon court before the award of custody was made.

We call attention to the fact that most of the evidence of unfitness relates to the time when the custody of these children was first awarded to the mother by the Oregon court. What the conditions are today is entirely a different matter. It appears that the applicant has since married another man and from aught that appears in the record she may now be entirely fit and proper to have the custody of the children. At any rate that is a subject that must be presented, if at all, to the proper court of the State of Oregon, which has jurisdiction over the custody of these children.

We point out also that this is not a case where the respondent father rightfully removed the children from the State of Oregon as in the case of In re Enke, Nont., 287 P.2d 19.

Though the answer of respondent raised no such issue, he was permitted to testify that no summons was ever served on him in the divorce action. He admitted however that a copy of the complaint in the divorce action was served on him. The failure to serve a copy of the summons was immaterial where, as here, it appears from the face of the Oregon decree that respondent appeared generally in the divorce action through his counsel. By thus appearing generally therein respondent submitted to the jurisdiction of the Oregon court for all purposes.

With respect to the order of the court declaring applicant to be in contempt of court, it is sufficient to say that no such adjudication can stand in the absence of a citation for contempt and an opportunity to defend. Application may have a perfectly legitimate excuse for not being present at the hearing so as to purge her of any contempt charge. Her conduct, if contemptuous, would furnish no justification for changing the custody of the children but would furnish the basis for proper contempt proceedings. Evans v. Taylor, Tex.Civ.App., 128 S.W.2d 77.

On the record applicant is entitled to the custody of the children in question here, all as provided in the decree of the Oregon court. Appellant's conduct in disregarding the order of the court is by no means condoned, even though she but followed the example set by respondent in removing the children from the State of Oregon. Her unjustified refusal to comply with the court's order should not deprive her of the benefits of the Oregon decree which had jurisdiction to award the custody of the children.

The decree is reversed and the cause remanded with directions that the court order the children to be committed to the custody of applicant all as provided in R.C.M. 1947, § 94-101-21.

ADAIR, Chief Justice (dissenting in part but concurring in the result).

I am unable to agree with much that is said in the foregoing opinion but I concur in the result and in the order determining the appeal.

The...