McMillin v. McMillin

• Decision Date: 09 April 1945
• Docket Number: 15591.
• Citation: 158 P.2d 444,114 Colo. 247
• Parties: McMILLIN et al. v. McMILLIN.
• Court: Colorado Supreme Court

158 P.2d 444

114 Colo. 247

McMILLIN et al. v. McMILLIN.

No. 15591.

Supreme Court of Colorado, En Banc.

April 9, 1945

Rehearing Denied May 7, 1945.

Error to District Court, City and County of Denver; George A Luxford, Judge.

Proceeding by Danny Leon McMillin, by his father and next friend, Henry Leon McMillin, against Annabelle McMillin and others for a writ of habeas corpus. To review a judgment granting the writ, the respondents bring error and apply for supersedeas.

Affirmed.

Felix L. O'Neill, of Denver, for plaintiffs in error.

Charles E. Holcomb and Paul F. Irey, both of Denver, for defendant in error.

STONE Justice.

In this proceeding, Henry Leon McMillin, on behalf of his four year old son Danny, filed a petition in the district court for a writ of habeas corpus, naming the child's mother Annabelle McMillin, together with her mother and sister, as respondents. Herein, for convenience, Annabelle will be designated as respondent.

It appears from the record that petitioner and respondent were formerly domiciled in Michigan, where there were numerous matrimonial difficulties and where respondent first sought the aid of the court. Petitioner was inducted in the United States army and subsequently brought action for divorce, in which respondent appeared and was represented by counsel. With both parties so represented an order was entered on the 17th day of August, 1944, in which the court made findings that respondent was an unsuitable person to have the care, custody, control and education of their minor child, Danny Leon McMillin; that respondent had disregarded an order of that court and violated a promise made in open court not to remove the custody of the child beyond the jurisdiction of the court, and ordered that the care custody, control and education of the minor child be awarded to petitioner, and that while he was in the military service the child be placed in and remain at the home of its paternal grandparents until further order of the court. Thereafter and on the 22d day of September, 1944, a decree of divorce was entered in favor of petitioner, in which decree it was directed that the custody of the minor child remain as provided in the prior order, but without any finding as to the fitness or character of respondent.

Upon the entry of the final decree petitioner, having obtained military leave, found respondent and the child in Denver and instituted this proceeding wherein service was made on the 26th day of September, 1944, returnable the day following. Over objection of respondent's counsel the matter was set for hearing forthwith upon the return day for taking the testimony of petitioner because of the necessity of his reporting for military duty, and it was then continued for further showing by respondent. The court, after hearing testimony of petitioner and becoming advised as to the order and decree of the Michigan court, ruled that under the full faith and credit clause of the Federal Constitution the court was bound by the divorce decree of the Michigan court and ordered stricken all evidence as to matters occurring prior to the decree. The court further ruled that since no attack had been made on the character of respondent by petitioner, and no finding made thereon in the divorce decree, her character and fitness to have custody of the child were not involved in the proceeding and rejected testimony relating thereto. No evidence was proffered by respondent tending to show lack of jurisdiction of the Michigan court or fraud therein or any change of situation since the date of the decree of divorce, and no showing, except by inference, of the establishment by respondent of domicile in Colorado. On this record the court found the issues in favor of petitioner, sustained the award of custody of the minor to petitioner and in his parents during his military service as provided in the Michigan decree, and granted the writ of habeas corpus.

Error is assigned in that the Colorado court held itself bound to recognize the decree of the Michigan court under the full faith and credit clause of the Federal Constitution without considering the primary and controlling issue, namely, the welfare of the child, when, it is urged, the child was lawfully domiciled in Colorado at the time the Michigan court awarded custody to petitioner and the latter court thereby lost jurisdiction and its decree was void.

The Michigan court had jurisdiction over both respondent and the child in the divorce proceeding, since all were domiciled and present in that state when the action was begun and respondent appeared and was represented by counsel therein. This jurisdiction included not only the issue of divorce, but of support and custody as well. We think the better rule is that, jurisdiction once having attached was not divested by any change of domicile as to the final decree of divorce and the award of custody in that decree. State v Rhoades, 29 Wash. 61, 69 P. 389; ...