Ex parte Mullins

• Decision Date: 21 November 1946
• Docket Number: 29845.
• Citation: 26 Wn.2d 419,174 P.2d 790
• Parties: Ex parte MULLINS. v. SAME. MULLINS
• Court: Washington Supreme Court

174 P.2d 790

26 Wn.2d 419

Ex parte MULLINS. MULLINS v. SAME.

No. 29845.

Supreme Court of Washington, En Banc.

November 21, 1946

Habeas corpus proceeding by Joseph D. Mullins against Mary Mullins involving the custody of their child, Joseph D. Mullins, Jr. From the judgment, Joseph D. Mullins appeals.

Reversed.

Appeal from Superior Court, King County; Calvin S. Hall, judge.

Wright Booth & Beresford, of Seattle, for appellant.

Rummens & Griffin, of Seattle, for respondent.

SIMPSON Justice.

The applicant, Joseph D. Mullins, a resident of Akron, Ohio sought to have a writ of habeas corpus issue out of the superior court of King county, whereby Mary Mullins, his former wife, be ordered to produce Joseph D. Mullins, Jr., in court so that a hearing might be had, and that she be directed to immediately surrender the child to the applicant.

A temporary writ was issued commanding the defendant, Mary Mullins, to have the child in court July 11, 1945, for the determination of the issues relative to the custody of the minor. The cause came on for hearing on the date just mentioned. After the trial, the court made an oral decision denying the relief prayed for in the application. October 13 1945, the trial judge filed a memorandum decision in which he found that the defendant, Mary Mullins, had established a domicile for herself and the minor child of the parties; that a journal entry of April 11, 1945 entered by an Ohio court changing the custody of the child from that of defendant to that of the applicant was void for lack of jurisdiction, and that it would be detrimental to the welfare of the child to order his return to Akron, Ohio. October 19, 1945, the court made findings of fact and conclusions of law which followed the views expressed in the memorandum opinion. On the same day the court entered its decree denying application for writ of habeas corpus. The applicant then appealed to this court.

There are eight separate assignments of error. The first five may be summed up as charging that the trial court erred in refusing to give full faith and credit to separate orders entered in the original divorce case regarding the care and custody of the minor child of the parties, and in finding that the domicile of the minor had been established in this state and had conferred jurisdiction on the trial court to make and enter orders concerning the welfare of the child. Assignments numbered 6 and 7 charged error in finding that the applicant had refused to pay for the support of the minor, and that he was not a fit person to have custody of the child. The eighth, and last assignment, predicates error in the denying of appellant's motion for a new trial.

The facts may be summarized as follows: Appellant, a resident of Akron, Ohio, is a foreman in the printing department of the Firestone Tire and Rubber Company. January 17, 1934, appellant and respondent were married in West Virginia. After their marriage they returned to Akron, Ohio and there made their home. One child, Joseph D. Mullins, Jr., now about eight years of age, is their son. In March, 1942, respondent filed an action for divorce in the court of common pleas of Summit county, Ohio, and was, after a trial, granted a decree of divorce, dated July 13, 1942. The decree approved a property settlement made between the parties, and awarded the custody and control of the minor child to respondent, subject to certain rights of visitation to appellant.

February 11, 1944, the Ohio court, after a hearing, at which both parties were present, entered an order which provided in part as follows: 'Should Marry Mullins desire to take the child on a trip to the Pacific Coast to visit her parents or relatives, she may do so for a period of not to exceed two months, providing any period of visitation to which Joseph D. Mullins would have been entitled had the child been in Akron is made up to the said Joseph D. Mullins after the return of said child from the said trip.'

February 21, 1945, appellant presented his petition in the court which had granted a divorce in the state of Ohio. In that petition he recited among other things that on or about the 25th day of October, 1944, Mary Mullins, without any notice to, or knowledge of, the appellant or the court, took the minor child to the city of Seattle, Washington, where she has since retained him. His petition showed further that he had sent by registered mail a copy of the motion to respondent who was residing with her mother, Mrs. Annie Barber at 5230 Tallman Avenue, Seattle, Washington.

The record shows that November 13, 1944, appellant mailed a registered letter at Akron, Ohio, addressed to Mary E. Mullins, 5230 Tallman Avenue, Seattle, Washington, and that it was received by Mrs. Annie Barber November 17, 1944. Mrs. Barber signed the receipt for Mary Mullins.

March 9, 1945, the Ohio court entered the following order:

'This cause came on to be heard upon the motion of the defendant asking and requesting this Court for a change of custody of the minor child of the parties from the plaintiff, Mary Mullins, to the defendant, Joseph D. Mullins, on the ground that the plaintiff, without and contrary to this Court's order, had removed the child from this Court's jurisdiction and out to the State of Washington and had retained the said child in the State of Washington contrary to this Court's order for a period in excess of four (4) months. The Court being fully advised in the premises hereby finds that the plaintiff has removed the said child from the State of Ohio and from the County of Summit for more than four (4) months contrary to and in violation of this Court's previous orders.

'It is therefore ordered, adjudged and decreed that unless the plaintiff, within the next thirty (30) days, to-wit: by April 10, 1945, returns the said child, to-wit: Joseph D. Mullins, Jr., to the City of Akron, County of Summit, Ohio, that the custody, care and maintenance of this child shall be at that time vested solely in the defendant, Joseph D. Mullins.

'This cause is continued to the 10th of April, 1945, at which time this matter will again be considered by this Court.

'Oscar Hunsicker

'Judge'

April 11, 1945, the court made and entered a further order which reads:

'This cause, having been continued by this court from the 9th day of March, 1945 to this the 10th day of April, 1945, came on to be heard upon the motion of the defendant requesting change of custody of the minor child of the parties hereto from Mary Mullins to Joseph D. Mullins, and the former order of this court which ordered this case continued to April 10, 1945, and the court being fully advised in the premises finds:

'First: That this court has jurisdiction over the custody of the minor child of the parties by reason of the plaintiff, Mary Mullins, having filed in this court in case No. 138550 her petition for divorce, etc.

'Second: That under a former order of this court, this court did by journal entry grant the custody of the minor child of the parties, to-wit: Joseph D. Mullins, Jr., age 7, to the plaintiff Mary Mullins, and did provide for visitation rights of the said child with his father, Joseph D. Mullins, and did by the said journal entry authorize the plaintiff, Mary Mullins, to take the said child with her on a trip to the Pacific coast to visit her parents for a period of not to exceed two (2) months.

'Third: That the plaintiff, Mary Mullins, did remove the said child from this court's jurisdiction to a point outside the State of Ohio, to-wit: to the City of Seattle, Washington on or about the 25th day of October, 1944, and the court finds that the said Mary Mullins has not returned the said child to this court's jurisdiction since that time.

'Fourth: That this court did, on the 9th day of March, 1945, execute a journal entry and filed the same in the Clerk's office of this court ordering Mary Mullins to return the said child, to-wit: Joseph D. Mullins, Jr., age 7, to a place within this court's jurisdiction within a period of thirty (30) days; that is, by April 10, 1945, and this court did in the said journal entry continue the hearing on this cause until this date, to-wit: April 10, 1945.

'Fifth: That on March 15, 1945 a registered letter was delivered to the residence of the said Mary Mullins in Seattle, Washington, and a return receipt card, signed by the mother of the plaintiff, was received and exhibited to this court, evidencing thereby that the said Mary Mullins had been notified of the continuance of this cause from March 9 to April 10.

'Sixth: The court finds further that Mary Mullins has failed, neglected and refused to return the said child to this court's jurisdiction.

'It is therefore Ordered, Adjudged And Decreed that the custody, care and maintenance of the minor child of the parties, to-wit: Joseph D. Mullins, Jr., be and the same is hereby changed from Mary Mullins, plaintiff, to Joseph D. Mullins, defendant, and it is the further order of this court that Mary Mullins immediately turn over to the defendant, Joseph D. Mullins, the said minor child, Joseph D. Mullins, Jr., and that said defendant, Joseph D. Mullins, shall have and retain the care, custody and maintenance of the said child until the further order of this court.

'Oscar Hunsicker

'Judge'

Realizing that respondent would not obey the order of the Ohio court, appellant filed in this state his petition for a writ of habeas corpus.

When respondent moved to Seattle in October, 1944, she went to the home of her father and mother at 5230 Tallman Avenue, Seattle. She stayed with them until the following January, and then moved to the Theodora Home, at which place she was living at the time of the trial. She did not notify her former husband of her residence.

The question...