In re Corey

• Decision Date: 20 June 1945
• Docket Number: 30293.
• Citation: 145 Ohio St. 413,61 N.E.2d 892
• Parties: In re COREY.
• Court: Ohio Supreme Court

61 N.E.2d 892

145 Ohio St. 413

In re COREY.

No. 30293.

Supreme Court of Ohio

June 20, 1945

Syllabus by the Court.

1. By virtue of the provisions of Section 1639-24, General Code the parents of a minor child or children are entitled to notice, actual or constructive, in a proceeding instituted in the Juvenile Court upon a complaint of dependency of such children. Unless such notice is given to the parents, the jurisdiction of the court does not attach and a judgment of commitment rendered in such proceeding is void.

2. Parents are the legal and natural custodians of their minor children, and each parent has an equal right to such custody in the absence of an order, judgment or decree of a court of competent jurisdiction fixing their custody.

3. A proceeding in habeas courpus is not the proper or appropriate action to determine, as between parents, who is entitled to the custody of their minor children.

Appeal from Court of Appeals, Ashtabula County.

Lester L. Corey filed a petition for a writ of habeas courpus in the Court of Appeals of Ashtabula county. In the petition it is alleged that Illomae and Geraldine Corey, minor children aged 12 and nine years respectively, are deprived of their liberty by one Agnes Weldy. The writ was issued.

Agnes Weldy filed an answer and the petitioner filed a reply thereto. The cause was submitted to the court upon the pleadings and an agreed statement of facts.

The court found 'that the children in question are not illegally detained * * * and it is further ordered that the writ of habeas corpus prayed for by the petitioner herein be and the same is hereby denied.'

The cause is here upon appeal as of right.

Further facts are stated in the opinion.

Tom R. Bailey, of Ashtabula, for appellant Lester L. Corey.

Earl C. Pettersson, of Painesville, for appellee, Agnes Weldy.

BELL Judge.

Lester L. Corey and Agnes Weldy were husband and wife and are the parents of the two minor children, Illomae and Geraldine Corey. On September 2, 1938, one Gertrude L. Fox filed a complaint in the Juvenile Court of Ashtabula county, in the following words and figures (omitting the formal parts and the verification):

'The state of Ohio, Ashtabula county.

'Before the Juvenile Court of said county, personally came Gertrude L. Fox residing at Ashtabula, Ohio, who being first duly sworn, says that she has knowledge of Illomae Corey and Geraldine Corey, minors under the age of eighteen years, to wit, about the age of 6 and 3 years, who is [sic] not an inmate [sic] of a state institution, or any institution incorporated under the laws of the state for the care and correction of dependent or delinquent children; that said minor is [sic] in the custody or control of Agnes Corey and that said minor [sic] appear to be dependent children in this, that the father is in jail and the mother is unable to care for the children.

'Mrs. C. D. Fox,

'(Complainant or applicant.)'

On that same day the court made an entry reading in part as follows:

'This day, Illomae Corey and Geraldine Corey were brought before the court, complained of by Gertrude L. Fox with being dependent children, and the court having instituted an investigation, and having heard all the evidence finds: That the law has been duly complied with in this case. * * * That said children are dependent in this, that the father is in jail and the mother is unable to care for the children, therefore come into the jurisdiction of this court, being in all respects within the provisions of the law concerning dependent and delinquent children. The court, finding further that it is for the best interests of said children that their parents be deprived of their care and custody temporarily for the reason that they are incapable of caring for them, therefore orders that said children be committed to the temporary care and custody of the Ashtabula County Children's Home, Ashtabula, Ohio, it appearing that said children are suitable persons to be so committed. The court finds further that said Lester Corey, residing Middle road, Kingsville, Ashtabula county, Ohio, father, is unable to contribute toward the support of said children. * * *'

Pursuant to that order the children were delivered to the children's home and remained there until June 8, 1943, at which time they were turned over to the petitioner (hereinafter called appellant) by the trustees of the home without any court order. The children remained with him until the early part of July 1944, at which time he permitted them to visit their mother who promised to return them at the end of two weeks.

It is a reasonable inference from the record that some time after September 2, 1938, and prior to July 1944, Agnes Corey became Mrs. Horace Weldy.

On July 26, 1944, the Juvenile Court made the following entry:

'In the matter of Illomae Corey and Geraldine Corey, alleged dependent children.

'This 26th day of July, 1944, the above mentioned case was reconsidered by this court. The original order of the court, made the 2d day of Sept., 1938, committed said child [sic] to the temporary care and custody of the Ashtabula County Children's Home at Ashtabula, Ohio, such order is hereby terminated and said children are committed to the care and custody of their mother, Mrs. Horace Weldy, R. D. No. 3, Madison, Ohio.'

Thereafter appellant filed an application to modify the last-mentioned order. Before a hearing thereon, he filed his petition for a writ of habeas courpus. Thereafter he dismissed, without prejudice, his application to modify.

Appellant summarizes his position as follows:

'First. That the Probate Court of Ashtabula county in the original instance, by reason of its failure to issue a citation or notice and have the same served upon appellant, failed to acquire jurisdiction to make any order concerning the Corey children and therefore the Court of Appeals erred in denying the writ of habeas corpus and...