Forslund, In re, 387
| Decision Date | 06 March 1963 |
| Docket Number | No. 387,387 |
| Citation | 2 A.L.R.3d 1379,123 Vt. 341,189 A.2d 537 |
| Court | Vermont Supreme Court |
| Parties | , 2 A.L.R.3d 1379 In re Orvel A. FORSLUND. |
Douglas C. Pierson, Burlington, for Orvel A. Forslund.
Edmunds, Austin & Wick, Burlington, for Eleanor Forslund.
Before HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.
This is a habeas corpus proceeding, involving child custody, brought by the mother before the Chittenden County Court following a California divorce. The history of this litigation, about which there is no dispute, is as follows. On August 25, 1956, Orvel A. Forslund brought a divorce proceeding against Eleanor Forslund in California. Mrs. Forslund filed a cross-complaint. On April 24, 1957, the California court entered an interlocutory judgment and decree of divorce to Mrs. Forslund on the grounds of cruelty. In doing so, the court reserved jurisdiction as to the custody of the minor children: Sharon Ann (born July 2, 1947), Robert Alan (born August 27, 1948) and Laurence Stephen (born August 7, 1953). At the time the children were under the jurisdiction of the Juvenile Court and the court ordered that this jurisdiction was to continue until further order.
On June 29, 1961, Mrs. Forslund petitioned for custody of the children and reasonable support. Mr. Forslund in turn, moved for a final judgment of divorce nunc pro tunc. The court responded by entering final judgment of divorce on July 11, 1961, the decree to be of record as of April 25, 1958. A hearing followed on Mrs. Forslund's petition for custody on September 7, 1961. The court denied her motion as to Sharon and Robert and put these tow children in the custody of their father, but gave the mother visitation rights on alternate week-ends. By agreement of parties the mother's motion was granted as to the custody of the youngest child, Laurence. The order to this effect was not signed by the court until April 6, 1962. It was never served upon Mrs. Forslund.
In November, 1961, Mr. Forslund moved from California to Vermont taking Sharon and Robert with him. The following May, within a month's time of the signing of the last custody order, Mrs. Forsland instituted another custody modification proceeding. This was started on May 3, 1962 and ordered Mr. Forslund to appear on May 29, 1962 to show cause why the order singed April 6, 1962 should not be modified. Service under this show-cause order was made on Mr. Forslund in conformity with the provision of the California statutes by mailing to his last known address and serving his attorney of record, but in fact, Mr. Forslund never had actual notice of the pending proceeding. The matter came on for hearing on June 26, 1962, Mrs. Forslund alone appearing. It resulted in a new custody order dated June 26, 1962, and filed June 29, 1962, by which the old order was amended so that it awarded custody of Sharon and Robert to Mrs. Forslund.
Armed with this latest custody order, without waiting for the expiration of time for a possible appeal, Eleanor came to Vermont, and on July 27, 1962 instituted this habeas corpus proceeding to effectuate the custody in her of the children concerned.
Mr. Forslund became apprised of the latest custody-order of the California courts only when Mrs. Forslund came to Vermont for the purpose stated, and he immediately set about seeking an appeal, through an attorney, of the California court's order. This appeal is now pending in the California courts.
At the same time, here in Vermont, he sought to show in the habeas corpus proceedings that since the date of the issuance of the modification order in California a change in circumstances had taken place whereby 'the children most properly should remain in his custody'. He also moved to dismiss on the ground that the order upon which Eleanor relies is not a final judgment but is awaiting a review on...
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Brown v. Chastain
...that object entails in most cases fact determination based upon complete testimonial evidence. See, e. g., In re Forslund, 1963, 123 Vt. 341, 189 A. 2d 537, 2 A.L.R.3d 1379, 1382. Actions by the state designed to sever the parental bond must be subjected to the most careful scrutiny. Denomi......
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Hare v. Starr Commonwealth Corp., Docket No. 291476.
...must constitute a final judgment on the merits. Alabama ex rel. Governor v. Engler, 85 F.3d 1205, 1209 (C.A.6, 1996); In re Forslund, 123 Vt. 341, 344, 189 A.2d 537 (1963); see also Halvey, 330 U.S. at 621, 67 S.Ct. 903 (Rutledge, J., concurring).B “As a general rule, judgments are to be co......
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Fehr v. McHugh
...which are inapposite — in support of the proposition that the Superior Court should not have enforced the judgment. In In re Forslund, 123 Vt. 341, 189 A.2d 537 (1963), the Vermont court refused to enforce a California custody order which was on appeal. Unlike Forslund, where the forced mov......
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