McCanliss v. McCanliss

• Decision Date: 10 February 1931
• Citation: 255 N.Y. 456,175 N.E. 129
• Parties: PEOPLE ex rel. McCANLISS v. McCANLISS.
• Court: New York Court of Appeals Court of Appeals

255 N.Y. 456

175 N.E. 129

PEOPLE ex rel. McCANLISS

v.McCANLISS.

Court of Appeals of New York.

Feb. 10, 1931.

Habeas corpus proceeding by the People, on the relation of Lee McCanliss, against Irene McCanliss, involving the right to the custody of an infant child. From an order of the Appellate Division (230 App. Div. 863, 245 N. Y. S. 119), reversing on the law an order of the Special Term, which awarded the custody of the child to the relator, and dismissing the proceeding, relator appeals.

Order reversed, and case remitted to the Appellate Division.

Appeal from Supreme Court, Appellate Division, Second Department.

Harold W. Bissell, of New York City, for appellant.

Frederick C. McLaughlin, John Reynolds, and Wilder Goodwin, all of New York City, for respondent.

CARDOZO, C. J.

The relator and the respondent were married in April, 1923, and lived together as husband and wife till December, 1927.

The month following the separation, the husband began an action against his wife for the annulment of the marriage. He complained that fraudulent representations had been made to him as to her origin, her legitimacy, and the moral character of her parents. The wife appeared and answered.

Three months later, the relator sued out a writ of habeas corpus under section 70 of the Domestic Relations Law (Consol. Laws, c. 14), to determine the custody of a child, the off-spring of the marriage, a boy of four years. He alleged in his petition that the child was in danger of being corrupted in morals if permitted to remain in the custody of the mother.

Upon the return to the writ, the respondent made the objection that the relator could not maintain the proceeding while the annulment suit was pending, and that by the bringing of that suit he had made an election of his remedy and was barred from any other. The objection was overruled, the court directing the parties to litigate the merits. By immemorial tradition the aim of habeas corpus is a justice that is swift and summary. If that be the aim, there was here a signal failure to attain it. The proceeding lasted for two years. There were thirty-two hearings, at which testimony was given by forty-nine witnesses, with the result that the printed record now before us covers five large volumes or over 3,100 pages. At the end, the trial judge, instead of confining himself to an order, the usual practice in such proceedings, made elaborate findings, 209 in number. He not only found against the wife in respect of all the charges made against her by the husband in the action for annulment. He even found against her as to a defense pleaded in that action to the effect that the husband had cohabited with her after knowledge of the fraud. The false representations may have had a bearing, though not of necessity a controlling one, upon the fitness of a mother to have the custody of this little boy, and even perhaps upon her fitness to divide it with the father. By this we do not mean to say that any finding of the fraud that is made in this proceeding will be proof in favor of the husband in his action to annul the marriage. Findings of evidentiary facts, though germane to the proceeding in which they have been made, are not always conclusive in another as part of the thing adjudged. Campbell v. Consalus, 25 N. Y. 613;Silberstein v. Silberstein, 218 N. Y. 525, 528,113 N. E. 495;Mehlhop v. Central Union Trust Co., 235 N. Y. 102, 108, 138 N. E. 751. All that is in issue in this proceeding, the ultimate fact to be determined, is the apportionment of custody between the father and the mother. Freeman on Judgments (5th Ed.) § 829. For the determination of that issue, some of the facts recited in the findings are not even evidentiary. They are foreign to the controversy, and should have no place in the decision. Not by any stretch of imagination was it necessary in determining the custody most beneficial to the child to pass upon the merits of the defense of condonation.

The findings of fraud in the inducement of the marriage must not be thought, however, to exhaust the case for the relator. They are accompanied by others, which if supported by the evidence, have a closer relation to the welfare of the infant. The respondent was not charged with adultery, and the judge made it plain by his decision that there was not even cause for suspicion that she, had been guilty of that offense. He found, however, that she professed immoral views as to the relations between the sexes and the duty of marital fidelity. He found that some of her associates were persons of loose morals and of corrupting habits of speech, and in particular that there had been a willful exposure of the child to contaminating contact with a man of evil life. The upshot was an order whereby the boy was given over to the custody of his father, the mother being given the privilege of visiting him between the hours of four and six on Monday of each week, and not even then if the child was at school or on vacation.

There was an appeal to the Appellate Division. That court reversed the order upon the law and dismissed the proceeding. It said in its opinion that at the time of the petition for the writ there was pending an action for the annulment of the marriage; that the husband had prayed in his complaint for an adjudication as to the custody of the child; and that ‘in face of the pendency of the annulment suit, in which judgment awarding the custody of the child to the respondent is sought, the habeas corpus proceeding should have been dismissed.’

We...