In re Ives
| Decision Date | 03 June 1946 |
| Docket Number | No. 69.,69. |
| Citation | 23 N.W.2d 131,314 Mich. 690 |
| Parties | In re IVES. In re BEVARD. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE Appeal from Circuit Court, Wayne County; Dewitt H. Merriam, judge.
Habeas corpus proceeding in the matter of the petition of Dorothy Jeanne Bevard concerning the detention of Clara Jean Ives, also known as Clara Jean Trowbridge, by Elmer J. Trowbridge. From an order dismissing petition, the petitioner appeals in the nature of certiorari, upon leave granted.
Cause remanded.
Before the Entire Bench.
Weiswasser Jaffe & Radner, of Detroit, for appellant.
Buell A. Doelle, of Detroit, for appellee.
This is an appeal in the nature of certiorari, upon leave granted, from an order of the circuit court of Wayne county dismissing appellant's petition for a writ of habeas corpus.
On February 15, 1944, Dorothy Jeanne Bevard, formerly Ives, filed a petition for a writ of habeas corpus in the circuit court of Wayne county alleging that on January 8, 1935, she was married to Robert Louis Ives and as a result of said marriage two children were born, their names being Clara Jean Ives and Robert L. Ives; that a decree of divorce was granted to petitioner by the circuit court of Wayne county and the custody of the two children was awarded to her; that Elmer J. Trowbridge, respondent, and his first wife were old friends of petitioner and shortly after the birth of Clara Jean Ives petitioner left the child in the care and custody of the respondent and his wife; that the child continued to live at the home of respondent and the petitioner regularly visited said child until about two years before filing the instant petition when she was refused permission to visit her daughter; that respondent attempted to adopt Clara Jean in the probate court of Wayne county, but his petition was denied; that petitioner is informed and believes that respondent instituted proceedings in the probate court of Washtenaw county for the purpose of adopting said Clara Jean Ives; that such resort to the court of Washtenaw county was an attempt to avoid the effect of the denial of adoption in Wayne county; that the probate court of Washtenaw county had no jurisdiction to entertain such adoption proceedings; that said Clara Jean Ives (Trowbridge) is restrained of her liberty by Elmer J. Trowbridge; that said Clara Jean is not committed or detained by virtue of any process, judgment, decree or execution specified in Act No. 314, chap. 37, § 8, Pub. Acts 1915, as amended; and that the petitioner is a proper person to have the care and custody of said Clara Jean.
On February 25, 1944, Elmer J. Trowbridge filed a return to the writ of habeas corpus in which it is alleged: ‘That on April 21, 1942, in the Probate Court for the County of Washtenaw, State of Michigan, in the matter of the estate of Clara Jean Ives, a Minor, being Number 32475, an order was entered by the Hon. Jay G. Pray, Judge of Probate, that I stand in the place of parent of said child, and that the name of the said child be changed to Clara Jean Trowbridge; that such order of adoption was based upon my declaration of adoption as a resident of Washtenaw County, on Godfredson Road, R.F.D. No. 3, where I resided from February 1, 1941, until eighteen months thereafter; upon the investigation and report of Arch D. Wilson, County Agent; upon substituted service having been obtained by sending a registered letter to the last known address of the natural mother of the said child, the petitioner herein, who was found to have abandoned said child, and by publication in a newspaper of general circulation in the County of Washtenaw; and, by the written consent of the natural father, Robert Louis Ives.'
Petitioner filed a traverse to the return and avers that the probate court of Washtenaw county was without jurisdiction to make any valid order of adoption because respondent was not a resident of Washtenaw county; because no consent was obtained from petitioner; because no proper substituted service was had upon petitioner in said proceedings; and because respondent employed the probate court of Washtenaw county to perpetrate a fraud upon petitioner.
The cause came on for trial. The proceedings in the probate court of Washtenaw county were made a part of the record. The record before us shows that on March 24, 1942, Elmer J. Trowbridge filed a declaration of adoption without consent of one parent in which it was alleged that Clara Jean Ives was six years of age on July 23, 1941; and Jean Ives Bevard has abandoned said child for a period of one year preceeding the date of filing the declaration of adoption; and that Elmer J. Trowbridge resides at R.F.D. No. 3, Ypsilanti in Washtenaw county. This declaration of adoption was signed and consented to by Robert Louis Ives, the father of said child, who was then living in California. On March 24, 1942, the following order, dated March 5, 1942, was entered in the probate court of Washtenaw county:
‘It is Ordered, That said party be served by Registered Mail, return receipt demanded, addressed to Jean Ives Bevard, the person not consenting to the adoption, at her last known address and to be posted by depositing in any United States Post Office at least fourteen days prior to the date set for hearing in said notice.
‘Jay G. Pray,
‘Probate Judge.'
On March 27, 1942, an affidavit was filed in the probate court of Washtenaw county stating that a copy of the petition for adoption and notice of hearing was on that day served upon Jean Ives Bevard by depositing the same in an envelope and sending it registered mail, return receipt requested, to ‘Mrs. Jean Ives Bevard, 6510 Third Avenue, Los Angeles, California,’ that being her last-known address. On April 15, 1942, an affidavit of service was filed in which it was stated that the letter sent by registered mail was returned to the sender because Mrs. Jean Ives Bevard had moved and had not left a forwarding address. On April 21, 1942, an order was entered in the probate court of Washtenaw county confirming the adoption without consent of one parent. On July 17, 1942, a petition was filed in the probate court of Washtenaw county by Dorothy Jeanne Bevard, petitioner herein, to set aside the order of adoption, but on November 27, 1943, the above petition was discontinued.
Evidence was also introduced showing that petitioner and Robert Louis Ives were divorced on December 8, 1938, by the circuit court of Wayne County; and that the care, custody and education of the minor children of the parties was decreed to Jeanne Ives until the further order of the court.
On June 26, 1944, the trial court filed the following opinion: ‘This Court is of the opinion that the due and orderly administration of justice requires that the issues raised herein should be presented to the Court in the County in which they have originated and that...
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