Ex parte Peddicord, 109.

• Decision Date: 23 October 1934
• Docket Number: No. 109.,109.
• Parties: Ex parte PEDDICORD.
• Court: Michigan Supreme Court

269 Mich. 142

256 N.W. 833

Ex parte PEDDICORD.

No. 109.

Supreme Court of Michigan.

Oct. 23, 1934.

Appeal from Circuit Court, Delta County; John G. Stone, Judge.

Application by James Peddicord for a writ of habeas corpus on behalf of James Edward Peddicord, a minor, against Leone L. Peddicord. From an order dismissing the petition, petitioner appeals.

Affirmed.

Argued before the Entire Bench.

Doyle & Doyle, of Menominee (Cowell & Frankhauser, of Coldwater, and L. H. Dunten, of Ft. Wayne, Ind., of counsel), for petitioner.

N. C. Spencer, of Calumet, and H. J. Rushton, of Escanaba, for respondent.

EDWARD M. SHARPE, Justice.

Petitioner and respondent, Leone L. Peddicord, were married in Allen county, Ind., in June, 1927, and as a result of that marriage a son, James Edward Peddicord, was born in August, 1928, July 16, 1931, a divorce was granted respondent on her cross-bill. The decree provided among other matters that petitioner pay respondent for the support of the minor child the sum of $7.50 per week and also provided that the custody of the child be given to respondent, subject to the right of the father to visit said child at reasonable times and to have the custody of the child on alternate Saturday afternoons and until 8 p. m. the following day. The decree also provided that the mother have the right to remove the child from the state each year during the months of July and August for a period of not to exceed thirty days.

During the months of July and August, 1931, respondent took the child to Michigan and remained there longer than thirty days. She then returned to Indiana where she had some difficulty with petitioner over his failure to pay alimony and concerning the child's clothing. About December 10, 1931, respondent removed the child to the home of her mother, Anna Spencer, in Escanaba, Mich. The child has remained in this state continuously since that time.

In January, 1932, the superior court of Allen county, Ind., upon motion of petitioner, entered an order suspending the order for the support of the child. In April, 1932, petitioner presented a petition to the Indiana court asking for the sole custody of the child. A summons was issued and was served upon respondent in Escanaba, Mich., May 31, 1932. Through her attorney, respondent entered a special appearance, objecting to the jurisdiction of the court, and at the same time filed a motion to set aside the service of summons and notice of petition to modify the decree. On June 20, 1932, the respondent's motion was overruled and petitioner was given the custody of the child and the court ordered that the child be kept within the jurisdiction of the Indiana court.

Prior to this order and on June 13, 1932, the petitioner filed a petition in the circuit court of Delta county, Mich., for a writ of habeas corpus in which he alleges that he is entitled to the custody of the child by reason of the fact that he had filed a petition in the Indiana court to modify the original order and give him custody of the child on the ground that respondent had violated the Indiana decree of July 16, 1931, by removing the child from the state, and for the further reason that respondent and Anna Spencer, the mother of respondent, are not fit persons for the custody of the child.

The writ was issued and the child was produced in court June 15, 1932, and was remanded to the custody of Newton C. Spencer during the pendency of this action. On June 23, 1932, after hearing the testimony, the trial court dismissed the petition, from which order petition...