Ex parte Quinn

• Decision Date: 27 June 1951
• Citation: 192 Or. 254,233 P.2d 767
• Parties: Ex parte QUINN. QUINN v. HANKS et al. *
• Court: Oregon Supreme Court

Page 767

233 P.2d 767

192 Or. 254

Ex parte QUINN QUINN v. HANKS et al. ^*

Supreme Court of Oregon.

June 27, 1951.

Allan G. Carson, of Salem, (Wallace P. Carson, of Salem, on the brief) for appellants.

Joseph M. Devers, Jr., of Stayton, (Walter H. Bell, of Stayton, on the brief), for respondent.

Before BRAND, C. J., and HAY, WARNER and TOOZE, JJ.

TOOZE, Justice.

This is a habeas corpus proceeding to determine the custody of Judy Jean Bristol, infant daughter of Jean Bristol Quinn and her former husband, Jack Bristol. The proceeding was instituted by Jean Bristol Quinn, named as petitioner, against Julia A. Hanks and Carlos B. Hanks, and Nona White, as probation officer of Marion county, Oregon, named as respondents. From a decree sustaining the writ and awarding custody of said child to the petitioner, the respondents Julia A. Hanks and Carlos B. Hanks appeal.

In passing, we suggest that in habeas corpus proceedings the person applying for the writ should be designated as 'plaintiff,' and the persons to whom the writ is directed, as 'defendants,' rather than as 'petitioner' and 'respondents.' §§ 11-422 and 11-423, O.C.L.A.; 39 C.J.S., Habeas Corpus, § 77, page 620.

The plaintiff and Jack Bristol were married at Vancouver, Washington, on November 2, 1942. On October 2, 1943, Judy Jean Bristol was born as the lawful issue of such marriage. On February 7, 1944, Jean Bristol (now Quinn), as plaintiff, filed suit for divorce against Jack Bristol, as defendant, in the circuit court for Clackamas county, Oregon. On February 21, 1944, a decree of divorce was duly entered of record in said circuit court in favor of the plaintiff therein. By said decree the custody of Judy Jean Bristol was awarded to defendant herein, Julia A. Hanks, the maternal grandmother of said child, reserving to defendant in that suit reasonable visiting privileges, and requiring him to make an allotment out of his pay as a member of the armed forces of the Unites States for the support of his child, which he did. Plaintiff also contributed to the child's care and support.

On August 14, 1945, pursuant to the motion of plaintiff in the divorce suit, the circuit court for Clackamas county duly made and entered of record an order modifying its decree of February 21, 1944, respecting the custody of said minor child, as follows: 'That the custody of the minor child born as a result of the marriage of the parties hereto be and the same is hereby transferred to the plaintiff, subject only to the objection or consent thereto of the father, upon his return from services in the armed forces of the United States; or until further order of this court * * *.'

Armed with this order of modification, plaintiff demanded from defendants Julia A. Hanks and Carlos B. Hanks, her husband, the custody of said child. The child had been and was then living with said defendants at their home near Silverton, Marion county, Oregon. The defendants refused to surrender custody.

Shortly before the instant proceeding was filed in the circuit court for Marion county, the defendants Hanks filed in the juvenile department of that same court a petition to declare said child to be a dependent child. It is obvious this step was taken in an attempt to defeat, if possible, the jurisdiction of the Clackamas county circuit court over said child. However, and wholly apart from the question of jurisdiction, the record is devoid of any showing whatever that said child was a dependent child within the meaning of the statutes of this state, and upon the final hearing the trial court very properly dismissed the proceeding. § 93-602, O.C.L.A., defining 'child dependency,' and § 126-301, O.C.L.A., defining 'dependent child.' This proceeding in the juvenile department of the circuit court accounts for naming Nona White, as probation officer, as one of the respondents.

The petition for the writ of habeas corpus filed in this case alleged the prior marriage of plaintiff to Jack Bristol; the birth of the child; the proceedings in the divorce suit in Clackamas county, including the modification of decree respecting custody of the child; the fact that petitioner permitted the child to remain with defendants on the representations of Julia A. Hanks that the grandfather was seriously ill and was asking for the company and companionship of the little girl; that plaintiff had remarried and thereupon had repeatedly demanded that the custody of the child be surrendered to her, and that such demands had been refused; that 'said Julia Hanks has caused to be filed in the Juvenile Court of the Circuit Court of Marion County a Complaint for juvenile dependency and that your petitioner represents and shows that the jurisdiction of the Circuit Court of Clackamas County has not been lost by virtue of said juvenile complaint'; 'That said minor child is not restrained or held by any order and so forth as set forth in Section 11-402, O.C.L.A.'; and 'The legality of this restraint has not already been adjudged upon a prior writ of habeas corpus.'

Based upon this petition, a writ of habeas corpus was issued and served upon defendants. The writ was in usual form. In her return to the writ, defendant Nona White alleged her inability to comply with the mandate of the writ due to the fact that said minor child was not then, nor had she ever been, in her custody or control. In their answer and return to the writ the defendants Hanks admitted certain allegations contained in the petition for writ, denied others, and for a further and separate answer, defense and return herein, alleged the birth of said child; their custody of her for a number of years; and 'That said petitioner is not a fit or proper person to have the future care, custody and control of said child'; 'That respondents Hanks are ready and able, and desire, to have the future care, custody and control of said child'; and 'That it is just and proper and to the best interest of said child, of society and of the state that respondents Hanks have the future care, custody and control of said child.' Plaintiff filed her reply denying the material allegations of the answer and return.

When the matter came on for hearing, the trial court ordered that both the juvenile proceeding and the habeas corpus proceeding be heard together. Plaintiff objected to the jurisdiction of the court in the juvenile court matter. The trial court said:

'At the time this matter was previously before the court it appeared to the court that in view of the equitable nature of the petition for habeas corpus, involving the infant child, the dependency hearing and the habeas corpus matter would probably all be determined on about the same evidence. And that is my view in connection with both matters * * *.

'Mr. Devers: It is my contention that there is no jurisdiction in the dependency matter in this court.'

Due to the position assumed by the court that this habeas corpus proceeding was equitable in nature, and that the paramount issue before the court was the welfare of the child, plaintiff requested and received permission to amend her original petition by adding thereto paragraphs IX and X, as follows:

'IX

'That petitioner, Jean Bristol Quinn is a fit and proper person to have the future care, custody and control of said minor child.

'X

'That it is just and proper and to the best interests of said child, of society and the state, that the petitioner Jean Bristol Quinn have such care, custody and control of said minor child.'

Defendants were permitted to amend their answer and return to deny this new matter.

Upon the issues thus formed, the matter was heard by the court. The transcript contains over six hundred typewritten pages of testimony, most of it being directed to the fitness of the mother to have the custody of her daughter and to what was claimed to be the best interests of the child. The father of the child was one of plaintiff's witnesses who testified that custody should be awarded to the plaintiff. Though, as will later appear, all this testimony was irrelevant and immaterial to the real issue involved, nevertheless, we note the fact that upon the conclusion of the evidence the trial court found that the mother was a fit person to have the custody of her child, and that the child's best interests and welfare demanded that such custody be awarded to her, with which findings we agree.

Ordinarily, a proceeding by habeas corpus involving the custody of a minor child is deemed to be an equitable proceeding, and in all such cases the polar star principle guiding the court in its final determination of the issues is the best interests and welfare of the child. On appeal to this court such cases are tried de novo. Crowell v. Crowell, 184 Or. 467, 198 P.2d 992; Hurner v. Hurner, 179 Or. 349, 170 P.2d 720; Bartlett v. Bartlett, 175 Or. 215, 152 P.2d 402; Armstrong v. Vancil, 169 Or. 320, 128 P.2d 951; Griffin v. Griffin, 95 Or. 78, 187 P. 598; Turner v. Hendryx, 86 Or. 590, 167 P. 1019, 169 P. 109.

In Bartlett v. Bartlett, supra, in a very exhaustive opinion Mr. Justice Brand, speaking for the court, thoroughly discussed the principles of law and jurisdictional questions involved in such proceedings. It is unnecessary, therefore, for us to repeat here what was there said.

Such equitable jurisdiction exists and is exercised in child custody cases in all those instances where no other Oregon court of concurrent jurisdiction has previously assumed jurisdiction.

Where jurisdiction over the custody of a minor child has been exercised by a court of a foreign state, and thereafter the child becomes domiciled in the state of Oregon, and there has been a change in circumstances following the entry of decree in the out-of-state court, the courts of this state may assume and exercise jurisdiction of an equitable nature in order to protect the welfare of such child. The full faith and credit clause of the Federal constitution does not bar such a proceeding....