In Re Cooke, 1153.

• Decision Date: 06 February 1945
• Docket Number: No. 1153.,1153.
• Citation: 41 A.2d 177
• Parties: IN re COOKE et al.
• Court: Vermont Supreme Court

41 A.2d 177

IN re COOKE et al.

No. 1153.

Supreme Court of Vermont.

Feb. 6, 1945.

Exceptions from Windham County Court; Hughes, Presiding Judge.

Habeas corpus proceedings by James Negley Cooke, Jr., to obtain an order for the custody of Diann Bonfoey Cooke and James Negley Cooke III, opposed by Ann Bonfoey Cooke and another. The named petitionee's motion to dismiss the petition was denied, and named petitionee brings exceptions under P. L. 2072.

Judgment denying motion affirmed and cause remanded.

Barber & Barber, of Brattleboro, and Willsie E. Brisbin, of Burlington, for plaintiff.

Lawrence & O'Brien, of Rutland, for defendants.

Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

STURTEVANT, Justice.

This is a petition for a writ of habeas corpus by means of which the petitioner, James Negley Cooke, Jr., is seeking to obtain an order for the custody of the two minor children named therein. Ann Bonfoey Cooke and Laurina Wells are the petitionees. However, since Ann Bonfoey Cooke is the only one opposing the granting of the petition, she is hereinafter referred to as the petitionee.

The petitionee moved to dismiss the petition upon grounds stated in her motion and the case is here under the provisions of P.L. 2072 on petitionee's exceptions saved to the action of the court in denying her motion.

The petition is dated July 20, 1944, and among the facts alleged therein are the following material to the questions presented by the exceptions. James Negley Cooke, Jr., and Ann Bonfoey Cooke were married at Quincy, Illinois, May 2, 1931. Two children were born of that union, namely, Diann Bonfoey Cooke, now eleven years of age, and James Negley Cooke III, aged eight years. On October 8, 1941, the mother of these children obtained a divorce from their father, the petitioner in the case at bar, in the Court of Common Pleas, Summit County, in the State of Ohio. At the time of granting that divorce the Ohio court made an order committing the custody of the two above named minor children to their mother, with visitation periods to the father. At the time of the bringing of the petition in the case at bar the two children with their governess, Laurina Wells, were at the petitioner's home in Brattleboro in this State. The petitioner has married again and now resides at Brattleboro and the petitionee is now a resident of this State, her home being at Stowe in the County of Lamoille. The presence of the children at the father's home when he brought his petition was in accordance with the terms of the decree issued by the Ohio court and a subsequent agreement between the father and mother, he thereby being privileged to have the children in his home during the first half of the summer of 1944. The petition is brought to the Windham County court by the petitioner as father and next friend of the children named therein.

The petition alleges that the mother of the children has instructed Laurina Wells, the children's governess, to remove them from the father's home on July 22, 1944, and with them meet the mother at some place outside Vermont, and from there all are to proceed to Miami, Florida, where Diann is to be entered in school. It is also charged that the mother is neglecting the education of these children, is attempting to poison their minds against their father and is neglecting their health, that of Diann in particular, and has failed to give them proper medical and dental attention. It also states that the mother is absent from home a great deal and has ceased giving the children her personal attention and relies solely upon a nurse or governess to supervise them, with the result that the children are not having the advantage of a parent's companionship, guidance and discipline, which the father is ready, willing and able to give them; that the children have arrived at an age when they should have parental supervision, affection and discipline which the mother does not give them because of outside activities and lack of interest in them. It is further alleged that for the reasons aforesaid, the mother has become incompetent to have the custody and control of these children and that to remove them from this State as the mother is about to do unless restrained from such action is contrary to law and against the best interests of said children.

The petition prays that a writ of habeas corpus issue against the mother and also against Laurina Wells, commanding that said children be forthwith brought before Windham County court to do and receive what said court shall then and there consider best concerning the children in this behalf, and also that a temporary order may issue restraining the mother and Laurina Wells, their agents and attorneys, from removing the children from the State of Vermont, and permitting them to remain in the custody of their father until this case is heard upon the merits, and it also contains a prayer for general relief.

The petitionee contends that her motion to dismiss the petition should have been granted because the Ohio decree giving custody of the children to the mother is res adjudicata as to the issue presented by the petition and therefore such order must be given full faith and credit here. When the writ of habeas corpus is used not as a writ of liberty in the strict and original sense of the term but as a means of inquiring into the rights of conflicting claimants as to the custody of a minor child, it is generally held that the doctrine of res adjudicata will apply where no material change of circumstances is shown to have arisen since the prior adjudication. Sheehy v. Sheehy et al., 88 N.H. 223, 186 A. 1, 4, 107 A.L.R. 635, and cases cited. The Ohio decree renders the question of custody res adjudicata as between the parents upon the facts as they existed on the date of the decree, that is, on May 2, 1941, but it has no binding, conclusive or even persuasive effects as to any events or changed conditions which may have occurred since that date. Sheehy v. Sheehy et al., 88 N.H. at page 226, 186 A. at page 4, 107 A.L.R. 635, and cases cited.

From the allegations contained in the petition as hereinbefore stated, it is clear that the petitioner bases his alleged right to the custody of these children upon conditions existing at the time of the bringing of his petition, that is, upon the change of conditions from those that existed at the time of the Ohio decree. This clearly appears from the petition, although it contains no specific allegation of changed conditions. From the foregoing it follows that the Ohio decree is not controlling in the case at bar. Sheehy v. Sheehy, supra; Goldsmith et al. v. Salkey, 131 Tex. 139, 112 S.W.2d 165, 116 A.L.R. 1293; White v. White, 214 Ind. 405, 15 N.E.2d 86. Also see annotations 20 A.L.R. 815; 72 A.L.R. 441; 116 A.L.R. 1299.

That such is the law is not seriously questioned by the petitionee but she contends that from the allegations contained in the petition it does not appear to be based on any change of conditions since the date of the Ohio decree. As we have seen this contention is without merit.

We agree with the petitionee's contention that Vermont has no statute which specifically authorizes the use of a writ of habeas corpus to determine questions as to the custody of infants. P.L. 2025 to which the petitionee directs our attention is as follows:

‘Prisoner entitled to. A person imprisoned in a common jail,...