Ex parte Honaker
| Decision Date | 20 October 1936 |
| Docket Number | 27177. |
| Citation | 61 P.2d 702,178 Okla. 50,1936 OK 644 |
| Parties | Ex parte HONAKER. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. A mother who was awarded custody of her minor child by a divorce decree is not necessarily guilty of abandonment thereof by leaving said child temporarily in the care of her parents, where it had lived with her for six years following the divorce, while she visits in another state and remarries and temporarily resides there; the purpose of leaving the child with its grandparents being to permit its attendance in the school to which it was accustomed.
2. One who has such an interest in an action that he could be made a party thereto does not necessarily enter his appearance therein by testifying as a witness.
3. A decree of court having validly vested the custody of a child in its mother, said provision therein could not be changed or modified in a subsequent habeas corpus proceeding by the father against the child's grandparents, to which proceeding the mother was not a party, and in which it was affirmatively shown that she had not abandoned the child but had left it temporarily with the grandparents for schooling.
Appeal from District Court, Pottawatomie County; Leroy G. Cooper Judge.
Habeas Corpus action by Carl Honaker against Mr. and Mrs. Tom Enochs for custody of Billie Damon Honaker. Judgment for defendants and plaintiff appeals.
Affirmed.
Carl Kuykendall, of Shawnee, for plaintiff in error.
Chapman & Chapman, of Shawnee, for defendants in error.
In 1929 Velma Honaker was granted a decree of divorce from her husband and awarded the exclusive custody of their minor son. At that time the child was about a year old. With the child she stayed at the home of her parents, the child's maternal grandparents.
In July of 1935, Velma Honaker went to California for the purpose of marrying. It appears from the record that her intention was to return to Oklahoma with her second husband, and they did return on a visit during December of the same year, when she contemplated taking the child back with her to California. She had left it with her parents during her absence, in order that it could attend school. In December when she returned here and considered taking the child with her to California it appears that it was her intention to return to Oklahoma in the spring of 1936 and live here permanently. In view of that fact, her counsel advised her to permit the child to remain here with her parents and attend the same school during the remainder of her absence. She accordingly left the child in the care of her parents, and it continued attending school and living with them. In January of 1936, the ex-husband father of the child, instituted this habeas corpus action against the child's maternal grandfather and grandmother, for possession of the child. The child's mother was not made a party to the action, but returned and testified at the trial, which resulted unfavorably to the plaintiff, and he appeals.
Plaintiff's first contention is that the trial court erred in excluding certain evidence offered by him. The record reveals that the same evidence, or so much thereof as was material, was later admitted. This contention is therefore without merit.
As nearly as we can analyze it, the remaining p...
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