In re John G. Cooper

• Decision Date: 10 February 1912
• Docket Number: 17,918
• Citation: 86 Kan. 573,121 P. 334
• Parties: In re JOHN G. COOPER, Petitioner
• Court: Kansas Supreme Court

121 P. 334

86 Kan. 573

In re JOHN G. COOPER, Petitioner

No. 17,918

Supreme Court of Kansas

February 10, 1912

Decided January, 1912.

Original proceeding in habeas corpus.

Petitioner remanded to custody of the sheriff.

SYLLABUS

SYLLABUS BY THE COURT.

1. DIVORCE--Refused--Care of Minor Children --Jurisdiction. Under section 668 of the civil code, providing that when a divorce is refused because the parties are in equal wrong the court may, for good cause shown, make such order as may be proper for the custody, maintenance and education of the children, no separate hearing is necessary and no specific kind of evidence is required to determine whether or not such an order shall be made.

2. DIVORCE--Same. At the conclusion of the divorce proceedings the judicial question arises upon them whether or not good cause has been shown for the entry of an order for the future protection of offspring. Whichever way the decision may fall, and whether or not it be sound or unsound, the court has jurisdiction to make it.

3. DIVORCE--Order for Care of Minor Children--Enforcement--Contempt. Should an order of the character described be made it may be enforced by proceedings for contempt and is not vulnerable to collateral attack in the contempt proceeding on the ground of want of jurisdiction.

4.SUPPORT OF MINOR--CHILD--Order--Disobedience--Contempt--Habeas Corpus. At the conclusion of the trial of a divorce action in which both parties were denied relief because in equal wrong an order was made requiring the father to convey to a trustee property for the maintenance and education of his infant child, the custody of which was given to its mother. The trustee was required to give bond for the faithful performance of his duties. The bond was not given until after citation for contempt had issued to enforce the order. After the bond was given and approved opportunity was offered for compliance with the order, but not improved, and the father was committed for contempt. Held, he may not be discharged by means of the writ of habeas corpus.

W. S. Martin, and James A. Troutman, for the petitioner.

J. S. Ensminger, for the respondent.

OPINION

BURCH, J.:

John G. Cooper was committed for contempt arising from willful disobedience of an order of the district court requiring him to make provision for the maintenance and education of his minor child. He asks to be discharged on the ground that the order was made without jurisdiction and consequently is void.

The petitioner's wife, Cora T. Cooper, commenced an action for divorce against him, alleging extreme cruelty and gross neglect of duty and praying for alimony and the custody of their three months old babe. The petitioner answered and asked for a divorce on the ground of extreme cruelty and gross neglect of duty and for the custody of the child. A protracted trial followed, at the conclusion of which the court made extended findings of fact, one of which was that the parties were in equal wrong. Conclusions of law were also stated, to the effect that neither party was entitled to a divorce, that the custody of the child should be awarded to its mother, and that property sufficient to insure its maintenance and education should be placed in the hands of a trustee. Judgment was rendered pursuant to the findings of fact and conclusions of law on April 29, 1911. The petitioner was ordered to convey specified real estate to a designated trustee for the use and benefit of the child, and the trustee was required to execute a bond in a stated sum to be approved by the court before entering upon his duties. In lieu of the conveyance the petitioner was given the option of making a deposit of money or interest-bearing securities. This order...