Ex parte Day

• Court: Washington Supreme Court
• Writing for the Court: BEALS, Justice.
• Citation: Ex parte Day, 65 P.2d 1049, 189 Wash. 368 (Wash. 1937)
• Decision Date: 10 March 1937
• Docket Number: 26281.
• Parties: Ex parte DAY. v. LONG, Judge. STATE ex rel. DAY

65 P.2d 1049

189 Wash. 368

Ex parte DAY. STATE ex rel. DAY v. LONG, Judge.

No. 26281.

Supreme Court of Washington, En Banc.

March 10, 1937

Appeal from Superior Court, King County; William G. Long, Judge.

Proceeding in the matter of the application of Frank F. Day for a writ of habeas corpus. From a decree denying the writ and dismissing the proceedings, Frank F. Day appeals.

Certiorari proceedings by the State, on the relation of Frank F. Day against William G. Long, judge of the superior court for King county, to review a decree of such court.

Decree affirmed as modified.

Meier &amp Meagher, of Seattle, for appellant.

Ballinger Clark, Mathewson & Force, of Seattle, for respondent.

BEALS Justice.

Frank F. Day and Marjorie Whitelaw intermarried in the city of Seattle June 24, 1919. Three children were born to them: Nancy, born July 14, 1923; Virginia, December 6, 1926; and Joseph Daniel, April 8, 1928. Thereafter Mrs. Day brought suit in the superior court for King county, asking for a divorce and the custody of her children, and in due time an interlocutory order was entered granting Mrs. Day a divorce, together with the custody and control of the children, subject to Mr. Day's right to visit them at certain times. Mrs. Day was awarded alimony in the sum of $150 a month. Final decree of divorce was entered October 2, 1929, the decree in all things confirming the interlocutory order. May 21, 1931, on Mr. Day's application, an order was entered reducing the monthly alimony to $75, the payments to remain at that amount for six months, after which they should increase to $100 a month. The order contained a finding to the effect that Mr. Day's failure to pay alimony which had become due prior to the date of the order had been caused by lack of funds on his part, and that Mr. Day was not in contempt of court. The order further found that Mr. Day and his then wife, Vale N. Day, were fit and proper persons to have the care and custody of Mr. Day's children, although Mrs. Marjorie Day's custody of the children was not disturbed.

During the spring of 1936, Mrs. Marjorie Day became very ill, and by reason of her illness and her consequent inability to care for her children, she intrusted Nancy to Mr. and Mrs. C. B. Dodge, Virginia to Mr. and Mrs. M. W. McInnis, and Joseph Daniel to Mr. and Mrs. H. W. McCurdy. It appears beyond question that all of these people are of the highest character, and that they were at all times capable of furnishing to the children proper and affectionate care, together with all necessary support, education, and maintenance.

Mrs. Day died April 9, 1936, and upon learning of her death, Frank F. Day, who had for some time resided in California with his third wife, the present Mrs. Day, went to Seattle, proposing to take his children back with him to California. Mr. and Mrs. McInnis refused to surrender custody of Virginia, and filed in the juvenile department of the superior court for King county a petition praying that the court inquire into the condition of Virginia and enter such an order as should seem proper. Mr. Day thereupon sued out a writ of habeas corpus, which required Mr. and Mrs. McInnis to produce Virginia Before the judge presiding over the juvenile court. Later during the course of the hearing, the chief probation officer of King county, under direction of the court, filed a petition stating that Nancy Day and Joseph Daniel Day were dependent children, and presented to the court the matter of their care and custody for consideration together with the matter of Virginia's custody.

The court consolidated all phases of the matter for hearing, and, after taking considerable evidence, made findings of fact and conclusions of law, followed by a decree adjudging that Frank F. Day 'is not a fit and proper person to be awarded the care, custody and control of any of said children, and he is hereby deprived permanently of the care, custody and control of said children and each of them'; that the three children were dependent and wards of the court; that Virginia should remain with Mr. and Mrs. McInnis, Nancy with Mr. and Mrs. Dodge, and Joseph Daniel with Mr. and Mrs. McCurdy, 'each under the jurisdiction and control of this court.' Mr. Day's application for a writ of habeas corpus was denied and the proceeding dismissed.

From this decree, Mr. Day appealed to this court, also filing here an application for a writ of certiorari, he being of the opinion that, under the opinion in the case of State ex rel. Gray v. Webster, 122 Wash. 526, 211 P. 274, an order of the juvenile court is not reviewable by appeal. Mr. Day's application for a writ of certiorari was regularly heard, and continued, to be considered with the appeal. (In so far as the decree dismissed Mr. Day's application for a writ of habeas corpus, it is, of course, subject to review by appeal.) The decree is now Before us for review, both upon the certiorari and the appeal.

Appellant assigns error upon the finding that he is not a fit and proper person to have the care, custody, and control of his children; upon the finding that the children were dependent; upon that portion of the decree which purports to deprive him permanently of the custody of his children, makes them wards of the court, and decrees that the children remain under the jurisdiction of the court until further order. Appellant also complains of the decree in so far as it denied his application for a writ of habeas corpus, and taxes costs against him in that proceeding.

The file in the action for divorce brought by Marjorie Day is in evidence. The findings in that case recite that both parties to the action appeared both in person and by counsel, and that witnesses were called by both plaintiff and defendant. The court found that the plaintiff, Marjorie Day, 'has always been since her marriage a true, dutiful and loving wife, and has fully discharged all the duties imposed upon her by the marital relationship.' Concerning Mr. Day's conduct, the court made the following finding:

'That defendant has been guilty of cruel treatment of plaintiff in that, among other things, he has repeatedly informed plaintiff that he has lost all love and affection for her; that he loves another woman; that he desires to be free from his marital obligations and has urged plaintiff to obtain a divorce from defendant and upon plaintiff's refusal to commence an action for divorce, the defendant, on August 21, 1928, when the youngest child was less than twenty weeks old, instituted an action for divorce from plaintiff in the superior court of the state of Washington for Skagit county, being cause No. 12860 on the records and files of said court and entitled 'Frank F. Day, plaintiff, v. Marjorie Whitelaw Day, defendant;' that in said cause the defendant maliciously and falsely and knowing said charges to be untrue charged plaintiff with finding fault with defendant, with telling defendant he was no good and with informing him defendant could not make a living, could not run or operate anything and was just worthless, and with refusing to live with defendant; that in said cause defendant further maliciously and falsely and knowing said charges to be untrue, charged plaintiff with refusing to speak to defendant when defendant would go home, calling defendant a crook, a dirty dog, a worthless fellow and with saying that defendant was financially no good and with asking defendant to take his clothes from the home of plaintiff and with asking him to surrender the keys to his home so that he could not enter when he would go home to see the children; with refusing to speak to defendant and charging that when plaintiff did speak to defendant she growled and scowled and charging plaintiff with maintaining toward defendant a manner and demeanor such that it was not possible for the defendant to go to see his own children without being insulted and humiliated; that defendant further in said cause maliciously and falsely and knowing said charges to be untrue, charged plaintiff with extravagance, and further maliciously and falsely charged that the eldest daughter of plaintiff and defendant had passed beyond the control of plaintiff and that the plaintiff could not make said daughter mind her; that after a trial of said cause on the merits the court found said charges, and each and all of them, to be false and untrue and made and entered findings of fact and conclusions of law accordingly and an order dismissing said cause on December 10, 1928.

'That the defendant has for several years last past studiously and consistently neglected plaintiff and his said children in that, among other things, he neglected plaintiff during her various confinements and during several severe illnesses which plaintiff has undergone; that upon plaintiff's refusal to comply with defendant's request to obtain a divorce, defendant deliberately entered upon a course of conduct intended by him to break down plaintiff's resistance to defendant's wishes and weaken and destroy the physical and mental health of plaintiff and as a result thereof plaintiff came to the verge of a nervous collapse which she was able to avoid only by proper medical care and kind and considerate treatment on the part of relatives and friends; that cause No. 12860 hereinabove referred to was tried on October 23, 1928, and that, at the conclusion of the said trial, this plaintiff was exhausted by the severe strain which she had undergone on account of the events leading up to the trial and by the trial itself and acting under the advice of her physician and others she shortly thereafter departed from the city of Seattle on a visit to relatives in Kansas City, Mo., in an attempt to regain her health; that Before her departure from the city

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