Kline v. Kline

• Decision Date: 13 December 1881
• Citation: 57 Iowa 386,10 N.W. 825
• Parties: KLINE AND ANOTHER v. KLINE AND ANOTHER.
• Court: Iowa Supreme Court

57 Iowa 386

10 N.W. 825

KLINE AND ANOTHER

v.KLINE AND ANOTHER.

Supreme Court of Iowa.

Filed December 13, 1881.

Appeal from Linn district court.

This is a proceeding in habeas corpus by which Joseph Kline, a resident of the state of Wisconsin, sought to recover the custody and control of Anna M. Kline and Alice Kline, his minor children. Upon a trial the court refused to make the order prayed for, and Joseph Kline appeals.Frank G. Clark, for appellant.

No appearance for appellees.

ROTHROCK, J.

The father and mother of said minor children were married in the state of Wisconsin in the year 1870. They lived together as husband and wife until June, 1874, when they separated, and the mother, Anna Kline, now Anna Humphrey, came into this state and brought with her the two children, the issue of said marriage, and they have resided in this state continuously since that time, said children being now eight and ten years of age. In November, 1876, Joseph Kline, the father, procured a decree of divorce in the state of Wisconsin upon the ground of desertion. There was no personal service of notice of the action upon Anna Kline. The service was by publication,according to the laws of that state. It does not appear that she had any knowledge whatever of said divorce proceedings until after the decree. The decree, in addition to divorcing the parties, awarded the care, custody, and control of the children to the father.

This proceeding was commenced in February, 1881, and it appears from the evidence that the father has not married since the divorce. The mother removed to the city of Cedar Rapids with her children in the year 1876, and shortly after her removal she married the defendant Humphrey. The children are well provided for. A teacher in one of the public schools testifies that for two or three years past they have attended the school taught by her, and that “they are comfortably dressed, and, from their appearance, well treated. Their attendance has been very regular, and they are intelligent and well behaved, and seem healthy.” We think the disposition of the case made by the learned district judge was fully warranted under the evidence. At least, as this proceeding is regarded as an action at law, we can only interfere where the finding is manifestly unsupported by evidence. Shaw v. Natchtney, 40 Iowa, 563; Dumb v. Keene, 47 Iowa, 435;Jennings v. Jennings, 9 N. W. REP. 222.

But it is urged that the father is entitled to the custody of the children by virtue of the Wisconsin decree. The general rule, as claimed by counsel for appellant, that the domicile of the wife and children is the domicile of the husband and father, is no doubt correct. From this it is argued that the circuit court in Wisconsin had complete jurisdiction of all the parties, and that the decree awarding the custody of the children to the father is entitled to full faith and credit in this state. But the rule contended for is subject to the exception, that in proceedings for divorce in most, if not all, the states, the law recognizes the husband and wife as having separate domiciles, and a valid divorce may be decreed in the state where only one of the parties resides. A suit for divorce, in its nature, makes the husband and wife opposite and contending parties, and the legal fiction of a unity of person and of domicile, by reason of the marriage, is...