Madson v. Wyoming Humane Society

• Decision Date: 27 December 1917
• Docket Number: 932
• Citation: 169 P. 336,25 Wyo. 338
• Parties: MADSON, ET AL., v. WYOMING HUMANE SOCIETY AND STATE BOARD OF CHILD AND ANIMAL PROTECTION
• Court: Wyoming Supreme Court

169 P. 336

25 Wyo. 338

MADSON, ET AL., v. WYOMING HUMANE SOCIETY AND STATE BOARD OF CHILD AND ANIMAL PROTECTION

No. 932

Supreme Court of Wyoming

December 27, 1917

ORIGINAL proceedings by petition for habeas corpus by Eddie Madson, Richard Madson and Violet Madson, minors, by May Madson, their next friend, against the Wyoming Humane Society and State Board of Child and Animal Protection.

Petition dismissed.

Clyde M. Watts, for petitioners.

The District Court did not have jurisdiction to make an order giving a stranger custody of said minors. The proper procedure is set forth by Sections 3108-3111 and 3117-3119, Comp. Stats. 1910. No notice was given the parents. Parents were entitled to their day in court as to the propriety of awarding custody to a third person. Where divorce is denied the court is without authority to pass upon the question of custody of children of the litigants. (Thomas v Thomas, 1912 B. Ann. Cases (Vol. 23), 346; Simon v. Simon, 39 N.Y.S. 573, affirmed 54 N.E. 1904; Palmer v. Palmer, 29 How. Prac. 390; Davis v. Davis, 75 N.Y. 221; 14 Cyc. 805.) In this proceeding the question is, what is the best interests of the children? (In the matter of Bort, 25 Kans. 308, 37 Am. Rep. 257.) Where parents are not apprised of an application to commit their child to custody of a third person, such an order is unauthorized. (Wood v. Wood, 70 N.Y.S. 72.) It must be affirmatively shown that the parents are unfit to have custody before they can be deprived of the right. (Norval v. Zinmaster, 57 Neb. 158, 75 A. S. R. 500, 43 Am. Rep. 779; Jones v. Darnell, 103 Ind. 569, 53 Am. Rep. 549.) The interest of the child is the paramount question. (Clark v. Bayer, 32 Ohio St. 299.) Habeas corpus is the proper remedy to ascertain and enforce the proper custody of an infant. (Greene v. Campbell, 35 W.Va. 698, 29 A. S. R. 843.) Unless it is clearly shown that both parents are disqualified, the court is not justified in awarding custody of children to a third person. (14 Cyc. 808; Farrer v. Farrer, 75 Ia. 123; Hopkins v. Hopkins, 39 Wis. 176.) The following sections of the statute govern the custody of children: Sections 3101-3113 and 3117, 3123, 3124 and 3125. In granting a divorce, the court may consider the interests of the children and make an order for their custody. Sec. 3933, Comp. Stats. 1910.) The evidence in the divorce action did not show that the mother was not a fit person to have custody of these children.

Wilfred O'Leary, for defendants.

The court was authorized to make the order. (Sec. 3932, Comp. Stats. 1910.) Irrespective of statute, the District Court was authorized to make an order in the divorce action to protect the best interests and welfare of the children. (Tytler v. Tytler, 15 Wyo. 319; Re. Lally, 16 L. R. A. (Iowa) 681; Jones, et ux., v. Bowman, 13 Wyo. 79; Nugent v. Powell, 4 Wyo. 173.) The custody of the children was made an issue in the pleadings in the divorce action.

BLYDENBURGH, JUSTICE. POTTER, C. J., and BEARD, J., concur.

OPINION

BLYDENBURGH, JUSTICE.

This is a habeas corpus proceeding instituted in this court by May Madson as the next friend of the minors Eddie Madson, Richard Madson and Violet Madson. The writ was issued and the office of the Attorney General, on behalf of the defendant, The Wyoming Humane Society and State Board of Child and Animal Protection, filed an answer and plead the order of the court in a divorce proceeding between the parents of these minors awarding their custody to the defendant, The Wyoming Humane Society and State Board of Child and Animal Protection, and also attached to said answer the pleadings in said divorce case. A demurrer was filed to this answer as not stating sufficient facts to constitute a defense to the petition. The case was heard on this demurrer by this court. It appears from the papers on file that Hans Madson, father of these minor children, brought a suit for divorce against his wife, May Madson, mother of the said minor children, alleging in one cause of action the adultery of his wife, and in another cause of action her conduct of such character in regard to morality and her associates as to render his condition intolerable, and such character as will without full proof of adultery raise suspicions that she was not chaste, and asked for the custody of these minors, alleging that his wife was not a fit person to have their custody. To this petition an answer was filed denying the allegations of the petition as far as the acts set out of adultery was concerned, and also a cross-petition asking for divorce on the grounds of indignities and not proper support, and also asking for the custody of these minor children. The case came to trial and after evidence was introduced on both sides the District Court of Laramie County issued the order set out in both the petition and answer in this case, and under which the defendant, Wyoming Humane Society and State Board of Child and Animal Protection, claims the right to the custody of these minor children. Said order is as follows:

"Hans Madson, Plaintiff, vs. May Madson, Defendant.

"Now on this 15th day of December, 1917, the above matter coming on for trial on its merits, C. E. Lane, Esq., appearing for plaintiff, and C. M. Watts, Esq., appearing for defendant, and the court, after hearing the evidence introduced by plaintiff and defendant, is not satisfied that either the plaintiff or defendant is entitled to a divorce;

"It is, therefore, ordered that said cause be, and it is hereby, continued until the next term of this court, giving the said parties the right to procure evidence in support of their respective claims.

"The court, however, is satisfied from the evidence produced on the stand that the minor children, Eddie Madson, aged twelve years, Richard Madson, aged eight years, and Violet Madson, aged six years, are surrounded by vicious and immoral influences, and are not receiving the proper care and support, and that it is detrimental to said children to leave them, for the present at least, in the custody of either the father or the mother.

"It is, therefore, further ordered by the court that the said minor children, and each of them, be turned over to, and placed in the custody of, The Wyoming Humane Society and State Board of Child and Animal Protection, until the further order of this court.

"It is further ordered by the court that the plaintiff be, and he is hereby, required to pay in to the clerk of this court ten ($ 10.00) dollars on the Monday following the date of this order, and a similar amount of ten ($ 10.00) dollars on each Monday thereafter, until the further order of the court, and said sums so paid to be disbursed by the clerk of the court upon the order of this court for the support of the said minor children."

In habeas corpus where questions that have been at all passed upon by courts are involved the province of the proceedings is to inquire only into jurisdictional matters and the habeas corpus proceedings cannot be used to take the place simply of proceedings in error. This has been passed upon in several cases by this court. (Fisher v. McDaniel, 9 Wyo. 457, 64 P. 1056, 87 Am. St. Rep. 971; Younger v. Hehn, 12 Wyo. 289, 75 P. 443, 109 Am. St. Rep. 986; Miskimmins v. Shaver, 8 Wyo. 392, 58 P. 411, 49 L. R. A. 831.) In the last mentioned case, in the opinion by Judge Corn, on pages 408 and 409, he reviews authorities and states the distinction and what the province of a writ of habeas corpus in cases of this kind is, to the effect that not only the jurisdiction of the person and subject matter are to be considered, but as to whether the court had authority to render the particular judgment or to make the particular order complained of in the proceedings, and quotes Brown on Jurisdiction with approval as to what are the three essential elements necessary to render a judgment or order valid as to jurisdiction, so that it will withstand the test by habeas corpus: "These are, that the court must have jurisdiction over the subject matter, the person of the defendant, and authority to render the particular judgment. If either of these elements are lacking, the judgment is fatally defective."

In suits for divorce where there are minor children their custody, either during the pendency of the action, or at the termination of the proceedings, is one of the matters that is before the court for consideration and order or judgment. (9 R. C. L., p. 472.) This was a power inherent in courts of equity in such proceedings and is generally more or less regulated by statute. The statutes of this state on that subject are covered by Sections 3932 and 3933, Comp. Stat. 1910:

"Sec. 3932. The court may, in like manner, on the application of either party, make such order concerning the care and custody of the minor children of the parties, and their suitable maintenance during the pendency of such action, as shall be deemed proper and necessary, for the benefit of the children, and may enforce its order and decree in the manner provided in the last preceding section."

"Sec. 3933. The court, in granting a divorce, and also upon pronouncing a decree of nullity of a marriage, may make such disposition of, and provision for, the children as shall appear most expedient under all the circumstances, and most for the present comfort and future well-being of such children; and the court may from time to time afterward on the petition of either of the parents, revise and alter such decree concerning the care, custody and maintenance of such children, as the circumstances of the parents and the benefit of the children shall require."

It is evident from these statutes and from the decisions of courts uniformly that in awarding the custody of children in these proceedings the leading...