Henderson v. Kleinman

• Decision Date: 21 January 1953
• Docket Number: No. 28889,28889
• Citation: 231 Ind. 657,109 N.E.2d 905
• Parties: HENDERSON v. KLEINMAN.
• Court: Indiana Supreme Court

Page 905

109 N.E.2d 905

231 Ind. 657

HENDERSON v. KLEINMAN.

No. 28889.

Supreme Court of Indiana.

Jan. 21, 1953.

C. James McLemore and J. Barton Stuart, Indianapolis, for appellant.

Harold C. Mull and Hanna & Small, Logansport, for appellee.

EMMERT, Chief Justice.

This is an appeal from a judgment for the appellee on a complaint for a writ of habeas corpus. ¹ The assignment of errors alleges the trial court erred (1) 'in failing and refusing to give appellant judgment on the pleadings upon proper motion therefor,' and (2) 'in overruling appellant's motion for a new trial.'

On January 20, 1949, the appellant Helen Marie Frick was divorced from her husband, Homer Frederick Frick, by decree of the Superior Court of Marion County, a certified copy thereof being introduced in evidence. This court in its decree awarded the custody of the minor children, Homer, Jr., age seven, and David William, age six, to appellant, and ordered the husband to pay to the clerk of the court the sum of $10 each week for the support of the children. Appellant asserts that this decree as to the custody of the children is conclusive on the appellee, with whom appellant had placed the children for care and support prior to the time of divorce, so long as the decree remains unmodified, and that the Cass Circuit Court was without jurisdiction to do more than enforce the decree of the Superior Court of Marion County.

If the action for habeas corpus had been between the parties to the divorce, then the Cass Circuit Court would have been concluded by the judgment of the Superior Court of Marion County. 'When a divorce case is tried in an Indiana Court having jurisdiction of the subject matter and parties, and the care and custody of the child or children are fixed in the decree rendered, the decree remains binding upon the parties and the courts until it is set aside or modified for cause shown, in a subsequent or supplemental proceeding in the same cause. State ex rel. Davis v. Achor, Judge, 1947, 225 Ind. 319, 75 N.E.2d 154, 157. Such decree cannot be modified or set aside by a collateral proceeding of habeas corpus even in the same court that rendered the decree, over the objection of either party. Leming v. Sale, 1891, 128 Ind. 317, 27 N.E. 619; McDonald v. Short, 1921, 190 Ind. 338, 343 et seq., 130 N.E. 536; Stone v. Stone, 1902, 158 Ind. 628, 631, 632, 64 N.E. 86; Willis v. Willis, 1905, 165 Ind. 332, 338, 339, 75 N.E. 665, 2 L.R.A.,N.S., 244; Brooke v. Logan, 1887, 112 Ind. 183, 186, 13 N.E. 669; Joab v. Sheets, 1884, 99 Ind. 328, 331, 332.' Scott v. Scott, 1949, 227 Ind. 396, 402, 86 N.E.2d 533, 535. See also McDonald v. Short, 1921, 190 Ind. 338, 345, 130 N.E. 536, and authorities therein cited. ² But in none of the cases holding the parties to a divorce are concluded by the decree as to custody do we find it squarely decided that the decree is binding on third parties not parties to the divorce proceedings. The appellee was not a party to the divorce action nor a party to the decree. Nor were the children parties to that action. Stone v. Duffy, 1914, 219 Mass. 178, 182, 106 N.E. 595. The judgment fixing the custody of the children in appellant was not a judgment in rem, and therefore was not binding upon the appellee. Matter of DeSaulles, 1917, 101 Misc. 447, 458, 459, 167 N.Y.S. 445. If the decree of divorce had placed the custody of the children with appellee a different question would have been presented.

But under the facts in this appeal we can see no reason for deciding as a matter of judicial policy, that in view of the paramount interest in the welfare of the children, we should decide that the appellee should be compelled to litigate the welfare of the children by intervening in the divorce proceeding, and filing a petition to modify the decree as to custody. ³ When the trial court acquired jurisdiction of the children by virtue of the writ it had full and complete authority to award their custody as between the parties, as their welfare and best interests required. Johnson v. Smith, 1931, 203 Ind. 214, 176 N.E. 705. ^3a

Where a writ of habeas corpus for children issues to obtain jurisdiction of the children, like the case now before us, 'where the freedom of children is only technically involved, the writ is allowed, not merely to determine legal rights of custody as between applicants therefor, but to accomplish the best interests of the infants, and hence distinguishable from cases involving unlawful imprisonment under color or claim of warrant of law. New York Fundling Hospital v. Gatti, 1906, 203 U.S. 429, 27 S.Ct. 53, 51 L.Ed. 254; State, ex rel. Evangelical, etc., Society v. White, 1913, 123 Minn. 508, 144 N.W. 157; Knapp v. Tolan, 1915, 26 N.D. 23, 142 N.W. 915, 49 L.R.A., N.S., 83; State v. Bechdel, 37 Minn. 360, 34 N.W. 334, supra.' McDonald v. Short, 1921, 190 Ind. 338, 343, 130 N.E. 536, supra. The paramount interest is the welfare of the children. Johnson v. Smith, 1931, 203 Ind. 214, 176 N.E. 705, supra; Thornton v. Devaney, 1944, 223 Ind. 47, 57 N.E.2d 579; Brown v. Beachler, 1946, 224 Ind. 477, 68 N.E.2d 915.

Appellant filed a reply to the appellee's return to the writ. Thereafter appellant filed a motion for judgment in her favor on the pleadings, which motion was overruled. By her return appellant brought the children under the jurisdiction of the court and raised the issue of the welfare of the children and the fitness of both parties seeking custody. The Cass Circuit Court had jurisdiction to act for the best welfare of the children, and it was not limited as to its jurisdiction or inquiry by the technical sufficiency of the return. Johnson v. Smith, 1931, 203 Ind. 214, 219, 176 N.E. 705 supra. By the return, the children were 'in the custody of the court, subject to its disposition, uncontrolled by the averments of the return. Bullock v. Robertson, 1902, 160 Ind. 521, 65 N.E. 5; Glansman v. Ledbetter, 1921, 190 Ind. 505, 103 N.E. 230; Buck v. Squires, 1924, 194 Ind. 112, 142 N.E. 7.' Mesmer v. England, 1926, 197 Ind. 700, 702, 151 N.E. 826. The motion for judgment on the pleadings was properly overruled.

On appeal we presume the record of the trial court is free from harmful error. Johnson v. Smith, 1931, 203 Ind. 214, 221, 176 N.E. 705 supra. If there is evidence to support the finding in a habeas corpus proceeding we will not disturb the judgment. Mahan v. Hendricks, 1912, 181 Ind. 630, 99 N.E. 418. It is only when there has been a clear abuse of discretion by the trial court that the judgment will be set aside. Thornton v. Devaney, 1944, 223 Ind. 47, 57 N.E.2d 579, supra. We have carefully examined the entire record in order to satisfy ourselves that the welfare of the children was adequately protected.

Appellant and Homer F. Frick were married in 1938; and had four children, Sharon Marie, Ronald, now the adopted children of the father's brother and sister-in-law, and Homer F. Frick, Jr. and David William Frick who are the children involved in this controversy. It is difficult for mere words to detail the full picture of the tragic neglect suffered by the small children when in appellant's care. In 1941 the father had furnished the home with new furniture. He was with the armed forces during the war, and when he returned from the service in November, 1945, there was no mattress on the beds for the children and no fuel in the home. There was a hole in the wall of the house, plaster and paper had been torn off, and there were some dead dogs on the back porch. The father bought coal and $160 worth of clothes for the children.

The father and mother were having domestic difficulties and he commenced a divorce action in Cass County, which he later dismissed, but while it was pending he paid $16...