Morrill v. Morrill

• Decision Date: 26 July 1910
• Citation: 77 A. 1,83 Conn. 479
• Court: Connecticut Supreme Court
• Parties: MORRILL v. MORRILL. SAME v. VON ROMBERG.

77 A. 1

83 Conn. 479

MORRILL

v. MORRILL.

SAME

v. VON ROMBERG.

Supreme Court of Errors of Connecticut.

July 26, 1910.

Appeal from Superior Court, Fairfield County; Lucien W. Burpee, Judge.

Petition by Walter C. Morrill against Antoinette C. Morrill for a modification of an order fixing the custody of the children of the parties, contained in a judgment of divorce granted in favor of the latter. From an order modifying the order, respondent appeals. Affirmed.

Mrs. Von Romberg was formerly the wife of the petitioner, Walter C. Morrill. They were married May 26, 1900, and thereupon took up their residence together in New York City, which had theretofore been, and has since continued to be, the place of his domicile. Two children, both boys, were born of the union. The oldest is now about 9 years of age, and the youngest about 7 1/2. In May, 1903, the wife separated from her husband, and, taking the children with her, went to reside with her father in Greenwich in this state. This situation continued for three years, when she brought her action for a divorce to the superior court in Fairfield county, returnable on the first Tuesday of June, 1906, charging intolerable cruelty, and claiming the custody of the children. They were then with her in Greenwich, as they had continued to be. Mr. Morrill appeared. The prayer for a divorce was granted June 22, 1906, and the judgment contained the following provision, agreed to by the parties: "And the care, custody and education of said minor children is hereby committed to the plaintiff, but that the defendant may have said children visit him at least six weeks in all during each year, said visits to be divided as to time into such periods as the defendant may reasonably ask." At that time Mrs. Morrill had no intention of removing the children from the state, or of not conforming her conduct to the terms of the order. Some time during the following summer Mrs. Morrill, at the petitioner's request, sent the children to visit their father at his then residence. Before this visit was requested Mr. Morrill had learned that Mrs. Morrill intended to go abroad for the benefit of her health, taking the children with her, and to remain abroad with them for a year. To this plan of hers he made no objection, and just before her departure he returned the children to her that she might take them with her. This visit of the children lasted less than two weeks, and was cut short to enable Mrs. Morrill to sail on the day she had selected. During Mrs. Morrill's absence in Europe she met Maximilian Von Romberg, then and now a German subject, residence in Wiesbaden, and July 13, 1907, was married to him. She thereupon took up her residence with her husband in Wiesbaden and has ever since resided there. The children have continued with her and her present husband in Wiesbaden, where they were when the petition was brought and now are. It is the intention of Mrs. Von Romberg to retain them there with her, and educate them there until they are old enough to be sent to an American preparatory school, and subsequently to an American university. There is a strong mutual attachment between her and the children. She devotes a large part of her time to them, and furnishes them a comfortable and attractive home. They are being well and carefully cared for and educated, and are happy and contented. She is in every respect a suitable and competent person to have the custody, care, and education of them, and ought to have it. Other facts which bear upon the court's exercise of its discretion are set out at length in the rinding. As they are not material to a consideration of the legal questions discussed in the opinion and determined, they are omitted.

The judgment of the court upon the petition left the former order unchanged except as modified by the following: "It is therefore ordered and adjudged that said Antoinette C. Von Romberg, upon the written request of said Walter C. Morrill, bring or send said children, under proper escort, at her own expense, to visit said Walter C. Morrill in any suitable place within the state of Connecticut or the state of New York, for a period of not less than six weeks in all, after July 1st in each year; that after the expiration of six weeks from the time they are delivered to him, said Walter C. Morrill conduct, or send said children, under proper escort, at his own expense, and cause them to be delivered to said Antoinette C. Von Romberg at her home in Germany, prior to October 1st in each year; that said written request of said Walter C. Morrill that said children be brought or sent to him be mailed in the city of New York, addressed to said Antoinette C. Von Romberg, at her last known place of residence in Germany, in season to reach her on or before June 1st in each year in which such request shall be made, and a copy thereof filed with the clerk of the superior court for Fairfield county."

The petition prayed for a modification of the original order so that the care, custody, and education of the children should be committed to the petitioner under such conditions and on such terms as the court might deem proper. Mrs. Von Romberg, after a demurrer to her plea to the jurisdiction of the court, filed pursuant to a special appearance for that purpose, had been sustained, filed a cross-petition in which she asked that the custody, care, and education of the children be committed unconditionally to her.

Henry Stoddard and Henry H. Pierce, for appellant.

Stiles Judson, for appellee.

PRENTICE, J. (after stating the facts as above). The question of first importance upon this appeal is one relating to the court's jurisdiction to entertain the petition, raised primarily by the plea to the jurisdiction demurred to. It must be conceded that if the proceeding to which the petitioner has resorted is to be regarded as an original and independent one, the objections urged to the jurisdiction of the court to grant the relief prayed for, under the circumstances disclosed by the record, would be unanswerable. The answer which is made, and well made, is that the petition is in no sense an independent proceeding, but one which is incidental to the action of divorce, and that the court's jurisdiction to entertain it and grant its prayer is one which follows from the jurisdiction acquired in that action.

There can be no question that the superior court in Fairfield county had full jurisdiction to render its original judgment granting a divorce and awarding the custody of the two children of the severed marriage relation to the wife. The plaintiff wife was domiciled in Greenwich, the children had for three years had their home there with her, and the husband appeared and submitted himself fully to the jurisdiction to which he now appeals. It has been held that where jurisdiction to grant a divorce and award the custody of the infant children of the marriage once attaches, that jurisdiction is, in the absence of a statute upon the subject, a continuing one, so that the power of the court to amend, modify, or annul its order of custody, as the welfare of the children under existing conditions may demand, ever after remains. Hoffman v. Hoffman, 15 Ohio St. 427; Miner v. Miner, 11 Ill. 43; Williams v. Williams, 13 Ind. 528. We, however, have no occasion to appeal to such a general principle, since we have a statute upon the subject. It is not framed with that care and precision which ought to mark legislative action. It cannot, however, be doubted that the intention of those who enacted it was to confer upon courts, which should have acquired jurisdiction of divorce proceedings a continuing authority, as an incident of the cause, to annul or vary any order as to the custody, care, or education of the minor children of the parties which it may have previously made, and it must be so construed. Gen. St. § 4558.

The petition is to be regarded as an appeal to the court which rendered the divorce judgment and passed the order embodied therein as to the custody of these children to modify that order in the exercise of a continuing jurisdiction of the cause to that end. Lyon v. Lyon, 21 Conn. 185, 192. As such an appeal, full jurisdiction of the cause originally obtained carried with it a continuing jurisdiction to make, as an incident of the cause, any order relating to the care, custody, or education of the children which was not forbidden by some controlling principle of law. Reasonable notice, as far as feasible, of contemplated action subsequent to the original judgment might well be required as a measure of fairness, and thus as a practical condition of further action, but that notice was not a condition upon which the jurisdiction of the cause was founded. Once acquired, that continues to the end. Sherwood v. Stevenson, 25 Conn. 431; Lyon v. Lyon, 21 Conn. 385. This conclusion by no means disposes of the questions presented by the situation before the court, or of the objections which are urged to the court's authority to modify its original order in view of that situation, which discloses the absence of the children from this state when the petition was presented and the order thereon made, and their presence in a foreign country, which had continued for several years. It does, however, furnish a substantial premise for such disposition. Mrs. Von Romberg, who will be referred to hereinafter as the respondent, contends that the language of the statute, which expresses the sovereign will, must be interpreted as inapplicable to situations where the situs of the child or children is at the time of any modifying action without the confines of the state, or, what is to the same effect, that a limitation to that effect must be read into it. As regards the interpretation of the language of the statute, we must say as the Supreme Court of Maine has said of a similar statute of that state, that we ...