Garrett v. Burbage

• Court: North Dakota Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: Garrett v. Burbage, 55 N.D. 926, 215 N.W. 479 (N.D. 1927)
• Decision Date: 22 October 1927
• Docket Number: No. 5355.,5355.
• Parties: GARRETT v. BURBAGE et al.

55 N.D. 926

215 N.W. 479

GARRETT

v.BURBAGE et al.

No. 5355.

Supreme Court of North Dakota.

Aug. 24, 1927.

Rehearing Denied Oct. 22, 1927.

Syllabus by the Court.

A parent's right to the custody of a child is preferred by section 4462, C. L. 1913, but in awarding the custody of a child the court will be guided by section 4461, C. L. 1913, which provides that the court must consider what appears to be for the best interests of the child.

Upon the death of a father, who had been awarded the custody of a child in a divorce proceeding, the mother may be given the custody of the child in a habeas corpus proceeding against persons who were not parties to the divorce action, it appearing from the evidence that the mother is a suitable person to have such custody, that she has a good home, and is able to care for and educate the child.

Appeal from District Court, Burleigh County; Fred Jansonius, Judge.

Habeas corpus proceeding by Myra Burbage Garrett against John K. Burbage and another for the custody of William Eugene Burbage, petitioner's minor son. From a judgment for petitioner, respondents appeal. Affirmed.Sullivan, Hanley & Sullivan, of Mandan, for appellants.

Dullam, Young & Burke, of Bismarck, for respondent.

PER CURIAM.

This is a habeas corpus proceeding for the custody of William Eugene Burbage, the child of Fred and Myra Burbage, who were divorced on the 4th day of August, 1922. The decree of divorce gave the custody of the child to the father. Fred Burbage, who with his father, John E. Burbage, placed the child in the care of Mrs. Robert Sharp, where it has been since the divorce. Fred Burbage died in January, 1923, and upon his death the petitioner demanded and has continued to demand the custody of her child.

Findings of fact and conclusions of law were made favorable to the petitioner, the writ granted, and the defendants appeal.

It is the contention of the defendants that since the decree of divorce granting the custody of the child to Fred Burbage was entered in Morton county, the district court of Burleigh county has no jurisdiction of the case. Appellants contend that any modification of a decree awarding the custody of the child should be made by the court granting the decree, which is probably true if a modification is necessary.

It is the contention of the respondent that a modification of a decree is not necessary when the party to whom the custody is given dies; that the divorce action was an action between Fred Burbage and Myra Burbage, and that since Fred Burbage is dead there can no longer be any dispute between the parties to the action of which the court had jurisdiction; that upon the death of Fred Burbage, Myra Burbage succeeded to her statutory right as a parent to the custody of her child; and that the proper procedure is by habeas corpus which could not be had in Morton county, for the reason that the child was not in that county or in that judicial district.

In support of this position respondent relies on the following authorities: In re De Saulles, 101 Misc. Rep. 447, 167 N. Y. S. 445;Stone v. Duffy, 219 Mass. 178, 106 N. E. 595; In re Robinson, 17 Abb. Prac. (N. Y.) 399; Case of Allen's Estate, 162 Cal. 625, 124 P. 237;Bryan v. Lyon, 104 Ind. 227, 3 N. E. 880, 54 Am. Rep. 309. These authorities go so far as to hold that the decree of a divorce court has no legal operation beyond the joint lives of the parents, and that on the death of the party to whom the custody of the child is given in the divorce action all matters of the status of the parties and their infant cease to be affected by their decree of divorce, and the decree has no further future operation.

In the case of Barnett v. Blakeley, 209 N. W. 412, the Iowa court said:

“The courts generally have departed from the original purpose of the writ, which was to determine whether or not the petitioner was being illegally imprisoned. As now used and recognized, in cases involving the custody of children, the writ of habeas corpus operates to invoke the broad powers of the court of an equitable nature to determine the question of custodyof a minor child according as the welfare and best interests of the child may require, having due regard to the legal rights of parents, or others. * * * The decree awarding custody of a child, in a divorce action, is provisional and temporary in character and is not res adjudicata except as to the facts and conditions before the court at the...