Ex parte Elliott
| Decision Date | 29 August 1961 |
| Citation | 114 Ohio App. 533,183 N.E.2d 804 |
| Parties | , 20 O.O.2d 85 Ex parte ELLIOTT et al., Minors. |
| Court | Ohio Court of Appeals |
Syllabus by the Court.
Custody of minor children will be awarded to their mother in a habeas corpus proceeding by her to obtain custody from the children's father to whom she was formerly married, where in a previous Ohio action by the husband for divorce and custody of the children, in which action the court had no personal jurisdiction of the wife, he was granted a divorce and awarded custody of the children, and subsequently in a custody action by the mother in a sister state in which personal jurisdiction of both parents was had and where the children were present, custody was awarded to the mother, and where there has been no change of circumstances respecting the mother's fitness or ability to care for the children and she has not neglected or improperly cared for them and is at present a fit person to care for them.
In Habeas Corpus: Court of Appeals for Franklin County.
Butler, Addison, Smith & Carmack, Columbus, for petitioner Eleanor Elliott Lawrence.
Clara S. Cory, Columbus, for respondent Harold Elliott.
This is an action in habeas corpus involving the right to custody of Charles and Vicky Elliott, minors. The petitioner, Eleanor Elliott Lawrence, is the children's natural mother. The respondent, Harold Elliott, is the natural father.
The parties here were husband and wife, and the children are the product of that marriage. In October 1957, in Columbus, Ohio, they executed a separation agreement giving the mother custody. The contract did not require the mother to remain in Ohio. The mother left almost immediately with the children to live in Barbourville, Kentucky, being taken there by the husband's father.
About January 10, 1958, the father went to Kentucky, obtained the children and returned to Columbus. The father claims that the mother was at that time neglecting the children and that he obtained the children with the mother's consent. However, the evidence before this court as to the circumstances is highly in conflict. The husband's version is contradicted by the mother and sister, and to some extent by a brother in law. The testimony of the only nonrelative does not substantiate the father's version.
Upon returning to Columbus, the father instituted a divorce action in the domestic relations division of the Common Pleas Court of Franklin County, Ohio. The action was filed on January 15, 1958. The mother was a minor at the time. She was served by publication. Subsequently, in March of 1958 she came to Columbus. No personal service of process was ever attempted. There is nothing in the evidence before this court which shows that the mother was ever brought within the personal jurisdiction of the Ohio court. On April 5, 1958, the court entered a decree granting the father a divorce, awarding him custody, and purporting to cancel and set aside the separation agreement.
The mother moved to Aberdeen, Maryland, shortly thereafter. She had several visits with the children, and, in January of 1960, with the father's consent, she obtained the children and took them to Aberdeen for a month's visit. She did not return the children, and in late January or early February the father went to Maryland.
The mother commenced an action for custody in the Circuit Court of Harford County, Maryland. The duly authenticated record of that proceeding shows a properly commenced suit, with process served by the sheriff upon the father's person by reading to him the subpoena, petition, affidavit and court order, and by giving to him copies of those documents. The return is dated February 2, 1960. A continuance was obtained by attorneys hired by and representing the father on February 4. The father was given temporary custody pending the hearing, and a bond of $1,000 was ordered. A $500 cash bond was later posted. The father returned with the children to Columbus. He had, while in Maryland, commenced a habeas corpus action in the same Maryland court against the mother, and she was properly served.
In the father's testimony, he admits being in Maryland on those dates, that he was represented by two attorneys and that the sheriff did read and leave with him copies of the documents. An answer and a motion were filed by his attorneys on February 26. The evidence shows that the father discharged his attorneys by letter dated June 28, 1960. The cases were consolidated and set for hearing prior to the discharge of the attorneys. Notice of the hearing was sent to the father, and he admits receiving the notice. The hearing was held August 25, 1960, and the father failed to appear, either in person or by counsel. The habeas corpus proceeding was dismissed. Evidence was submitted in the custody proceedings, and, on September 10, 1960, a decree was entered awarding the mother custody and support, forfeiting the bond, and giving the mother final judgment for the amount of the bond. There is no evidence of any appeal or other action being taken. Petitioner, the mother, brought the present action of habeas corpus in this court on December 9, 1960.
It is apparent, both on the facts in this case and on the law of Ohio, that the Ohio court did not have personal jurisdiction of the mother. The decree of that court was, therefore, not binding on the mother with respect to the cancellation of the separation agreement, nor with respect to her interest in the custody of the children. See May v. Anderson (1952), 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed 1221; Armstrong v. Armstrong (1954), 162 Ohio St. 406, 123 N.E.2d 267. Both the facts of record here and the law applicable to the domicile of the children at the time of the Maryland proceedings makes the determination of that issue very difficult. Cf. Restatement of the Law of Conflict of Laws, at page 57. But it is clear that the mother was domiciled in Maryland; that the court had personal jurisdiction of both the father and the mother; and that at the commencement of the suit, and for some days thereafter, the children were physically present in Maryland, and they were released to the father in temporary custody under bond and court order to produce them for the hearing. The Maryland court, therefore, had jurisdiction to and did enter a valid final order. See the discussion in Bowman v. Bowman (1956), 101 Ohio App. 400, 139 N.E.2d 679. The father's deliberate refusal to produce the children for final hearing was both foolhardy and contumacious. There is some suggestion in the evidence that this was on the advice of an attorney. If the attorney could justifiedly have assumed a lack of personal service upon the father, such advice would be...
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