In re Application of Winn, Civil 3691

• Decision Date: 21 December 1936
• Docket Number: Civil 3691
• Citation: 63 P.2d 198,48 Ariz. 529
• Parties: In the Matter of the Application of DOROTHY WINN, Formerly DOROTHY WILKY, for a Writ of Habeas Corpus. v. DOROTHY WINN, Formerly DOROTHY WILKY, Appellee GEORGE L. WILKY and MARTHA WILKY, His Wife, Appellants,
• Court: Arizona Supreme Court

63 P.2d 198

48 Ariz. 529

In the Matter of the Application of DOROTHY WINN, Formerly DOROTHY WILKY, for a Writ of Habeas Corpus.

GEORGE L. WILKY and MARTHA WILKY, His Wife, Appellants, v. DOROTHY WINN, Formerly DOROTHY WILKY, Appellee

Civil No. 3691

Supreme Court of Arizona

December 21, 1936

APPEAL from a judgment of the Superior Court of the County of Maricopa. Howard C. Speakman, Judge. Reversed and remanded with directions.

Mr. L J. Cox and Mr. W. L. Barnum, for Appellants.

Mr Austin O'Brien, for Appellee.

OPINION

McALISTER, J.

This is an appeal by George L. Wilky and Martha Wilky, his wife from a judgment of the superior court in a habeas corpus proceeding granting the petitioner, Dorothy Winn, the care, custody and control of two minor children.

Dorothy Silky and Virgil Wilky, it appears from the record, were married in June, 1928, and the two children in question, Robert and Beverly Wilky, were born to them and at the time this petition was filed in February, 1935, were four and five years of age respectively. On the 8th day of July, 1933, the petitioner, Dorothy Winn, formerly Dorothy Wilky, filed in the Superior Court of Maricopa County a complaint for a divorce from Virgil Wilky on the ground of nonsupport and in it alleged that she was unable, and the father, Virgil Wilky, an improper person to have the care and custody of the children, and asked the court to make such disposition of them as was fit in the premises. The summons was served the same day and on August 2, 1933, no answer having been filed, default was entered and five days later a decree divorcing the parties rendered. The court did not, however, dispose of the custody of the children in that suit but incorporated in its decree the statement that due to the fact that they were then in California out of its jurisdiction "the court can make no disposition thereof at present."

The petition, filed February 5, 1935, alleges that on July 8, 1933, the day the summons in the divorce action was served, the father removed the children to California surreptitiously and by force and made no appearance in that suit, and that thereafter the respondents moved to California and remained there with the father and the children until about the 1st of November, 1934, when they returned to Phoenix with the latter; that some time thereafter the petitioner discovered that the children were again in Maricopa county and made several attempts to visit them and secure their custody but the respondents would not permit her to do either; that petitioner is a fit and proper person to have such care, custody and control and is entitled thereto, but that the respondents restrain and conceal them from her. The court ordered issued a writ of habeas corpus directed to the respondents commanding them to bring the children into court on February 6, 1935, and show the cause of their detention and do whatever should be decided concerning them.

In their answer to the writ the respondents allege that it was agreed at the time of the separation of the mother and father that they should have the possession and care of the children and that on July 8, 1933, they were given such care, custody and control by the petitioner and Virgil Wilky; that since then they have endeavored to promote the best interest of the children, and that the petitioner knew at all times thereafter where they were and corresponded with their father and the respondents. They allege also that prior to the 8th day of July, 1933, the petitioner abandoned the children and left them solely in the care of their father and these respondents and deny that they surreptitiously or by force removed them from the state of Arizona. They aver further that it would be to the best interest of the children that their care, custody and control remain in the respondents who are persons suitable therefor, and deny that the petitoner is a fit and proper person in whose care and custody to place them.

At the close of the hearing the court took the matter under advisement and on April 15th made the following findings: That petitioner, the mother of Robert and Beverly Wilky, is a fit and proper person to have their care, custody and control; that there has been no showing of abandonment of them on her part, but that she surrendered their custody to the respondents because of exigencies over which she had no control and for their benefit and welfare; that the respondents are the paternal grandparents, the grandfather being seventy years of age and the grandmother sixty-three, and that the best interest of the children will be subserved by granting their care, custody and control to their mother.

From these findings the court stated the following conclusions of law:

"(1) That the Petitioner herein, as a matter of law, is entitled to the care, custody and control of her said minor children, Beverly Wilky, now of the age of five years, and Robert Wilky, now of the age of four years.

"(2) That the petitioner herein, being the mother of the said children involved in this matter, is entitled to the care, custody and control of said children, as against respondents.

"(3) The court finds that under the law of Arizona the parent of the children, who is a fit and proper person, is entitled to the care, custody and control of said children as against all others. Harper v. Tipple, 21 Ariz. 41, 184 P. 1005."

Pursuant to the findings and conclusions the court rendered a decree granting the petitioner the care, custody and control of the children and directing the respondents to deliver them to her immediately upon receipt of the judgment. The respondents promptly moved for a new trial but this was denied and they have brought that order and the judgment here for review.

A large number of errors are assigned but discussed under fewer propositions of law. It is necessary, however, as we view it, to consider only one of these and that is that where, at the time of the separation and divorce, the custody of minor children was left with the father and paternal grandparents, the father had equal rights with the mother in determining the custody of the children in a proceeding in habeas corpus by the mother to recover their custody, unless evidence was shown that the best interests of the children would be subserved by taking the custody from the grandparents. This statement of the law, if correct, applies to the facts of this case.The finding of the court was that the petitioner surrendered the custody of the children to the grandparents because of exigencies over which she then had no control and for their benefit, and the record discloses that from that time, about July 1, 1933, until the decision in this action on April 15, 1935, they were in the custody of the grandparents and the father. The latter, aided by his parents, had their care and custody personally. from the time the petitioner left him on July 1, 1933, until the grandmother returned to Arizona with them on November 1, 1934, and from then until the date of the decree through the agency of his parents.

The writ of habeas corpus was directed to the respondents and at the hearing the question inquired into was whether they or the petitioner was entitled to the care and custody of the children. While the court found that the petitioner was a fit and proper person to have such care and that the best interests of the children would be subserved by placing them with her, the conclusions of law disclose that in granting her their custody, and directing the respondents to deliver them to her immediately upon receipt of the judgment, the court was guided, in part at least, by the decision of this court in Harper v. Tipple, supra. After stating in conclusions one and two that the petitioner, as a matter of law and as the mother of the children, is entitled to their custody as against respondents, the court concludes in number three "that under the law of Arizona the parent of children, who is a fit and proper person, is entitled to the care, custody and control of said children as against all others," and cites as a basis therefore Harper v. Tipple.

The language quoted is, generally speaking, a correct statement of the law and was especially applicable to the facts...