Hollibaugh, Application of

Citation58 Wn.2d 18,360 P.2d 737
Decision Date30 March 1961
Docket NumberNo. 35583,35583
PartiesApplication for a Writ of Habeas Corpus by Evelyn HOLLIBAUGH. Evelyn HOLLIBAUGH, Petitioner-Appellant, v. Glenn W. PROSSER, Respondent.
CourtUnited States State Supreme Court of Washington

J. Peter P. Healy, Tacoma, for appellant.

Milton Heiman, Seattle, for respondent.

HUNTER, Justice.

This is an appeal from an order denying a petition for a writ of habeas corpus after a hearing upon the merits in the superior court for King county.

The petitioner, Evelyn Hollibaugh, is the mother of a minor child, Orin Douglas Prosser, born on the 7th day of January, 1951. She alleged in her petition that an interlocutory decree of divorce was obtained from Glenn W. Prosser, the father of said child, on the 8th day of January, 1953, and the final decree was entered on the 31st day of March, 1954, in the superior court for the county of Sacramento in the state of California. The custody of the minor child was awarded to the petitioner. In November, 1954, she permitted the child to visit the paternal grandmother for a period of two weeks; during this period the father removed the child from the state of California without the petitioner's permission and succeeded in secreting and hiding the child from the petitioner for the past six years. During this time the petitioner diligently searched for her child and finally located him in the custody of the father in Seattle, Washington.

The petitioner further alleged that the child was being restrained of his liberty contrary to the order of the California divorce decree, and she asked that a writ of habeas corpus be issued directing the father to deliver the child before the superior court of King county and show cause, if any, why the child should be detained by him and should not be delivered to the petitioner. Pursuant to the petition, a writ of habeas corpus was issued directing the father to deliver the minor child into court upon a day certain, at which time a hearing was held upon the return of the writ on the 6th day of December, 1958, and concluded on Monday, the 8th day of December, 1958, before the court sitting without a jury. The petitioner and her attorney, and Glenn W. Prosser and his attorney, appeared in person. Evidence, both oral and documentary, was introduced and considered by the court. At the conclusion of the hearing, the court made findings of fact and conclusions of law and entered judgment which provided that the child should remain with the respondent father and that the application for a writ of habeas corpus be denied, from which judgment the petitioner appeals.

The record discloses that subequent to the filing of the notice of appeal a statement of facts was filed by the petitioner. A motion was interposed by the respondent to strike the statement of facts which was regularly noted in this court. Upon a hearing thereon, the motion to strike the statement of facts was granted.

The rule is well established in this court that in the absence of a statement of facts we must assume that the evidence sustains the trial court's findings and that the same will be accepted as verities. Wilder v. Baker, Wash.1960, 358 P.2d 133.

The sole issue upon this appeal, in view of this state of the record, is to determine whether the findings of fact support the judgment entered by the trial court.

The petitioner contends that the trial court was without jurisdiction to enter an order modifying the custody provisions of the California divorce decree, relying upon the well-established rule that a court of this state will not modify a custody decree of a sister state unless the child is domiciled within the state of Washington. In the recent case of Chandler v. Chandler, Wash.1960, 353 P.2d 417, 422, we stated 'Custody decrees of a sister state will not be changed here when the children are not domiciled in this state. Such is a prerequisite to the exercise of jurisdiction by Washington courts. State ex rel. Marthens v. Superior Court, 25 Wash.2d 125, 169 P.2d 626; In re Mullins, 26 Wash.2d 419, 174 P.2d 790; Sherwood v. Sherwood, 48 Wash.2d 128, 291 P.2d 674.'

We also recognized in the Chandler case, the settled rule in this state announced in In re Mullins, supra, that a parent may not change the domicile of his child to the state of Washington by taking him to this state in disobedience of a custody decree of a sister state. We further recognized in the Chandler case, the rule announced in Guy v. Guy, 1960, 55 Wash.2d 571, 348 P.2d 657, that where a superior...

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5 cases
  • State ex rel. Glasier v. Glasier, 39442
    • United States
    • Supreme Court of Minnesota (US)
    • July 30, 1965
    ...upon wrongdoing by allowing a parent to gain an advantage by disobeying the orders of a court.' See, also, In re Hollibaugh v. Prosser, 58 Wash.2d 18, 21, 360 P.2d 737, 738. Professor Ehrenzweig finds that a large number of jurisdictions have clearly shown the inclination to recognize or en......
  • Guay v. Washington Natural Gas Co.
    • United States
    • United States State Supreme Court of Washington
    • July 3, 1963
    ...v. Fowler, 58 Wash.2d 435, 363 P.2d 812; Michielli v. United States Mortgage Co., 58 Wash.2d 221, 361 P.2d 758; In re Hollibaugh v. Prosser, 58 Wash.2d 18, 360 P.2d 737; and Fain v. Nelson, 57 Wash.2d 217, 356 P.2d The trial court found as a fact that the trespass came under the trebledamag......
  • Chace v. Kelsall, 39094
    • United States
    • United States State Supreme Court of Washington
    • December 28, 1967
    ...from the parol evidence rule; and Two: Is the debt of appellants subject to discharge in bankruptcy.' In In re Hollibaugh v. Prosser, 58 Wash.2d 18, 20, 360 P.2d 737, 738 (1961) the court stated: The rule is well established in this court that in the absence of a statement of facts we must ......
  • Betts v. Betts, 171--11
    • United States
    • Court of Appeals of Washington
    • July 20, 1970
    ...the court can to whatever the sister state could do in modifying custody provisions of its divorce decree. In re Hollibaugh v. Prosser, 58 Wash.2d 18, 360 P.2d 737 (1961), citing New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133 California case law provides that o......
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