McKay v. Carstens, 28881
| Decision Date | 28 October 1952 |
| Docket Number | No. 28881,28881 |
| Citation | 108 N.E.2d 249,231 Ind. 252 |
| Parties | McKAY v. CARSTENS et al. |
| Court | Indiana Supreme Court |
Robert K. Rodibaugh, Isadore D. Rosenfeld, South Bend, for appellant.
Scheer, Scheer & Ettl; Harry Taylor, South Bend, for appellees.
On the 2nd day of December 1949 the appellant was granted a divorce from Jerome Anson, her then husband, in the St. Joseph Circuit Court, and the custody of their child, Larry Lee Anson, now about 5 years of age, was awarded to the appellant.
Since that time, however, she has permitted the child to be kept and cared for by the appellees, who have formed a strong attachment for him. On July 17, 1951, the appellant filed what she designates as a petition for writ of habeas corpus, whereby she sought to regain the custody of said child.
The petition was filed in the St. Joseph Circuit Court under the cause number originally assigned to the divorce case, and it was titled and captioned in the names of the parties to that action. The appellees filed a 'return' to said writ and a cross-complaint whereby they sought a judgment against the appellant and Jerome Anson for $1,600 for the support and maintenance of said child.
The appellant filed 'exceptions' to the return. The cross-complaint seems to have been abandoned, there having been no service, appearance or further pleadings and no finding or judgment thereon. The trial court heard the evidence and awarded custody of said child to the appellees. From that judgment this appeal was taken.
The petition for writ of habeas corpus contains the usual allegations and alleges that the appellant was awarded custody of said child in the decree of divorcement. The return alleges that the appellees have kept the child, without pay except a period of eight weeks, since April 8, 1949; that appellant abandoned the child; has shown little concern for its welfare and has visited the child but rarely; that the appellant is not a fit person to have the care and custody of said child. They request the court to make such orders with reference to the child as are consistent with the best interests of said child and that they be permitted to retain him until further order of the court.
The 'exceptions' do not challenge the sufficiency of the return as a matter of law. The instrument consists of an argumentative denial of the allegations of the return, with the further allegation that the appellant is a fit and proper person to have the care, custody and control of said child, and the allegation of facts from which it might be inferred that the appellees are unfit to have him. No question concerning the legal sufficiency or appropriateness of any pleading was made in any way by anyone.
It its finding the court stated that the writ of habeas corpus was denied; that the petition of the appellees for custody of the child was granted until further order; and the order for $10 per week support money (against Jerome Anson) was continued as theretofore entered.
As above stated, the petition for writ of habeas corpus was not filed as an independent action. It was filed in the original divorce action, and was titled and captioned in the names of the parties to said action. The appellant seems to have adopted it as a method for obtaining enforcement, in the divorce action, of the order theretofore entered which awarded to her the custody of the child. The return was obviously a petition to modify that order, and the exceptions joined that issue.
In Scott v. Scott, 1949, 227 Ind. 396, 86 N.E.2d 533, this court said, citing many authorities, that when a divorce case is tried in an Indiana court having jurisdiction of the subject matter and parties, and the care and custody of child is fixed in the decree rendered, the decree remains binding upon the parties and the court until it is set aside or modified in a subsequent or supplemental proceeding in the same cause. It cannot be modified by a collateral proceeding of habeas corpus even in the same court that rendered the decree, over the objection of either party.
Not only was no objection made to this modification of the order in this proceeding, but the court below and the parties to this litigation all seem of have treated the case to be tried as one in which the questions presented for decision were (1) whether the existing order awarding custody of the child to the appellant should be enforced or (2) whether it should be modified by awarding the custody of said child to the appellees.
Where parties voluntarily adopt and pursue an unorthodox method of procedure, or agree to some unusual manner in which their rights shall be submitted for determination, they may not be heard to complain, on appeal, that...
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