Haines v. Haines

• Decision Date: 04 March 1968
• Citation: 56 Misc.2d 440,288 N.Y.S.2d 957
• Parties: Application of Barbara J. HAINES, Petitioner, for a Writ of Habeas Corpus to Determine custody of Wanda Maurine Haines, a Child under the age of 14 years, new held by Philip A. HAINES, Respondent.
• Court: New York Family Court

Page 957

288 N.Y.S.2d 957

56 Misc.2d 440

Application of Barbara J. HAINES, Petitioner, for a Writ of Habeas Corpus to Determine custody of Wanda Maurine Haines, a Child under the age of 14 years, new held by Philip A. HAINES, Respondent.

Family Court, Ulster County.

March 4, 1968.

Joseph P. Torraca, Marlboro, for petitioner.

Michael Nardone, Highland, for respondent.

HUGH R. ELWYN, Judge.

By writ of habeas corpus which has been referred by the Supreme Court to this court the petitioner seeks to regain the custody of her two year old daughter from her husband, Philip A. Haines who on June 21, 1967, in defiance of a temporary order of the Superior Court of the State of Oklahoma awarding exclusive custody and possession of the child to the petitioner, removed the child from the State of Oklahoma to the State of New York.

The parties were married at Lawton, Oklahoma on February 11, 1962, but established their marital domicile in the Township of New Paltz, Ulster County, New York where the respondent was employed as Park Superintendent at Lake Mohonk. Although the marriage was threatened from the start by much disharmony stemming from the wife's immaturity and emotional instability and later undermined by well founded suspicions of the wife's infidelity, the parties continued to live together until about May 1st, 1967 when the wife suddenly left her husband to return to her parent's home in Lawton, Oklahoma, taking her infant daughter with her.

On May 9, 1967 the respondent followed his wife and daughter to Oklahoma where, unsuccessful in his efforts to effect a reconciliation and to persuade his wife to return home, he reluctantly and unwillingly agreed to permit his wife to seek an immediate divorce. This, however, presented some legal difficulties for under Oklahoma law (Title 12, Okla.Stat. § 1272) 'either the plaintiff or the defendant in an action for divorce must have been an actual resident, in good faith, of the State, for six months next preceding the filing of the petition' and of course neither party met this requirement. In order to circumvent this provision of the Oklahoma law the respondent, who was not represented by counsel, allowed his wife's attorney to refer him to another attorney who undertook to represent him and in whose office, the respondent says, he signed without reading a petition petitioning the Oklahoma Court for a decree of separate maintenance determining and decreeing his responsibility to the defendant and his minor child. The respondent's petition, which was filed with the Oklahoma Court on May 10th was promptly followed on May 11th by the filing of an answer and cross petition on the part of his wife, the defendant in the action, in which she sought a decree of divorce on the grounds of incompatibility and the exclusive custody as well as support for the child.

When the full import of this legal maneuvering to avoid the six months residency requirement finally dawned upon the respondent, he, still not wishing a divorce, on June 2nd through counsel dismissed his own petition for separate maintenance and moved to dismiss his wife's cross petition for divorce upon the grounds that it was an effort to perpetrate a fraud upon the court by violating the jurisdictional laws of the State of Oklahoma. While this motion was pending before the Court and on June 20, 1967 the Oklahoma Court made and order that during the pendency of the action the plaintiff pay to the defendant for alimony and child support the sum of $40 per week and another order setting the motion to dismiss and the defendant's cross petition for a hearing on July 14th. The following day June 21st the Oklahoma Court made still another order awarding the exclusive care, custody and possession of the child Wanda Maurine Haines to the defendant and cross petitioner pending the hearing of the action and ordering the plaintiff, Philip A. Haines not to remove the child from the jurisdiction.

However, at about 9:00 A.M. on the morning of June 21st and before the restraining order of the Oklahoma Court, ¹ was served upon his attorney, the respondent proceeded to his wife's parent's home, in Lawton, Oklahoma where he forcibly removed his daughter and then according to a prearranged plan, by rented car, chartered plane and commercial jet whisked his daughter back to New York State. Subsequent to the respondent's departure from the State of Oklahoma the Superior Court of Oklahoma proceeded to hear the wife's cross-petition for divorce and on July 14, 1967, the plaintiff having defaulted, the Oklahoma Court denied the plaintiff's motion to dismiss the defendant's cross-petition, granted the defendant a decree of divorce, awarded exclusive custody of the child to the defendant, found the plaintiff to be an unfit person to have the custody of his daughter and ordered him to return the child to the custody of the defendant to Lawton, Oklahoma. The respondent did not, of course, comply with the decree of the Oklahoma Court and so on August 14, 1967 the petitioner armed with the Oklahoma divorce decree awarding her the custody of her daughter obtained a writ of habeas corpus from a justice of the Supreme Court of this state.

In his reply to the writ the respondent asserts that the Superior Court of the State of Oklahoma was without power or jurisdiction to make any judgment concerning the marital status of the parties or to determine the custody of their minor child for the reason that neither of the parties on the date of the judgment were bona fide residents of the State of Oklahoma. Although it would clearly appear that the Oklahoma divorce proceedings were collusive, nevertheless it also appears that such practice as was resorted to here has been sanctioned by the Oklahoma Courts. In Haynes v. Haynes, 190 Okl. 596, 126 P.2d 65 the appellant challenged a divorce decree which had been granted on the answer and cross-petition filed in the plaintiff's action for separate maintenance brought pursuant to Title 12 Okl.Stat. § 1284, which authorizes alimony without divorce, because of the failure of the cross-petition to allege the local residence of the defendant for the period as required of the plaintiff in a divorce action by the provisions of the Oklahoma statute. The Supreme Court of Oklahoma held (p. 597, 126 P.2d p. 66) that the 'statute (12 O.S.1941, § 1272) does not apply to a defendant who by cross-petition seeks a divorce.' The Court went on to say: 'If the court has jurisdiction of the plaintiff's action wherein a cross-petition for divorce is proper, then the residence of the defendant becomes immaterial to the court's jurisdiction to grant a divorce on the cross-petition. Here, the plaintiff instituted her action for alimony in the nature of separate maintenance without divorce as authorized by 12 O.S. 1941 § 1284 setting up all necessary jurisdictional facts. The court was authorized by said section to grant either the wife or husband a divorce on proper grounds.' (See also Anderson v. Anderson, 131 Okl. 95, 267 P. 621).

The holding of Haynes v. Haynes, supra may constitute a trap for the unwary ² into which the respondent inadvertently stumbled or its authority may have been overruled by the amendment to 12 O.S. § 1272, effective June 24, 1965. At the time of the Haynes decision 12 O.S. § 1272 read as follows: 'The plaintiff in an action for divorce must have been an actual resident, in good faith, of the State, for six (6) months next preceding the filing of the petition, and a resident of the county in which the action is brought at the time the petition is filed.' At that time the only Oklahoma statute which imposed a residence requirement was Section 1272 and that requirement was with respect to a Plaintiff in an action for Divorce. Effective June 24, 1965, § 1272 was amended to read as follows: 'Either the Plaintiff or the Defendant in an action for divorce must have been an actual resident, in good faith, of the State, for six months next preceding the filing of the petition.' (Emphasis supplied).

The Oklahoma law as respects the residency requirements for divorce was extensively briefed by counsel for both parties and so far as this court is aware there has been no decision of the Supreme Court of Oklahoma since 1965 that would purport to lend a different meaning to the statute, as amended than the language contained in the statute itself. Indeed, it is asserted that the amendment to the Oklahoma statute was designed to overcome the very problem that has been brought to light in this case. However, be that as it may, the interpretation and effect of the amendment of the Oklahoma statute is for the Oklahoma courts, rather than this court.

Regardless of the interpretation put upon the Oklahoma Divorce statutes by the Oklahoma Courts, the fact remains that the respondent initially invoked the jurisdiction of the Oklahoma Court by filing a suit for separate maintenance, pursuant to the laws of Oklahoma. Having made a personal appearance therein it is extremely doubtful that he could collaterally attack the divorce for want of jurisdiction in the State of Oklahoma, ³ and being unable to attack the divorce decree in the rendering state the respondent cannot attack it for want of jurisdiction in New York (Johnson v. Muelberger, 340 U.S. 581, 71 S.Ct. 474, 95 L.Ed. 552). Having invoked the jurisdiction of the Oklahoma Court and having participated in that action he may not in this state relitigate the issue of residence or the jurisdiction of the Oklahoma Court to grant the decree. (Lynn v. Lynn, 302 N.Y. 193, 201, 97 N.E.2d 748, 752, 28 A.L.R.2d 1335, citing Johnson v. Muelberger, 340 U.S. 581, 71 S.Ct. 474, 95 L.Ed. 552; Sherrer v. Sherrer, 334 U.S. 343, 68 S.Ct. 1087, 92 L.Ed. 1429; Coe v. Coe, 334 U.S. 378, 68 S.Ct. 1094, 92 L.Ed. 1451; Davis v. Davis, 305 U.S. 32, 59 S.Ct. 3, 83 L.Ed. 26; Senor v. Senor, 297 N.Y. 800, 78 N.E.2d 20; Matter of Rhinelander, 290 N.Y. 31, 36--37, 47 N.E.2d 681; ...