Motichka v. Rollands

• Decision Date: 09 August 1927
• Docket Number: 20594.
• Parties: MOTICHKA v. ROLLANDS et al.
• Court: Washington Supreme Court

258 P. 333

144 Wash. 565

MOTICHKA v. ROLLANDS et al.

No. 20594.

Supreme Court of Washington

August 9, 1927

Department 2.

Appeal from Superior Court, Chelan County; Parr, Judge.

Habeas corpus proceeding by Edward Motichka against Louise J Rollands, formerly Louise J. Motichka, seeking recovery of the custody of their minor child. Petition denied, and petitioner appeals. Reversed, with directions.

C. F Wallace, of Wenatchee, for appellant.

C. B Conner, of Wenatchee, for respondent.

PARKER, J.

This is a habeas corpus proceeding commenced in the superior court for Chelan county, wherein the petitioner, Edward Motichka seeks recovery from Louise J. Rollands, his former wife, of their minor child, Eva Irene, who had been awarded to him by the decree of divorce dissolving their marriage relation rendered by the district court of Montana, for Flathead county. A hearing in the superior court for Chelan county resulted in denial of the relief prayed for by petitioner and the awarding of the minor child in question to the custody of its mother, Mrs. Rollands. From this disposition of the case, the petitioner, Edward Motichka, has appealed to this court.

There is no dispute over what we conceive to be the controlling facts of this case, particularly in so far as the courts of this state are lawfully permitted to make inquiry with reference to the lawful custody of the child in question. They may be summarized as follows: On January 16, 1925, there was rendered by the district court for Flathead county, Mont., a decree of divorce dissolving the marriage relation existing between these parties, reading as follows:

'This cause coming on regularly to be heard this 16th day of January, A. D. 1925, before the court sitting without a jury, Messrs. Logan & Child appearing for and on behalf of the plaintiff, and T. H. MacDonald, Esquire, appearing for and on behalf of the defendant, the court, after hearing the testimony offered and being fully advised as to the law and the facts, finds:

'That for more than one year next preceding the commencement of this action the above-named plaintiff was, ever since has been, and now is a bona fide resident of the state of Montana.

'That on the 26th day of May, 1913, plaintiff and defendant were intermarried at Kalispell, Mont., and over since have been and now are husband and wife. That the fruit of said marriage consists of two children, Luella Josephine, a daughter, age eight years, and Eva Irene, a daughter, age four years.

'That commencing at a time about four weeks after the marriage of plaintiff and defendant, as aforesaid, and extending up to the time of the filing of the complaint herein, the defendant has been guilty of extreme cruelty to the plaintiff in and by the infliction of grievous mental suffering upon the plaintiff by the defendant by a course of conduct toward and treatment of the plaintiff by the said defendant, existing and persisted in for a period of more than one year before the commencement of this action, which justly and reasonably is of such a nature and character as to destroy the peace of mind and happiness of the plaintiff and entirely to defeat the proper and legitimate objects of marriage and to render the continuance of the married relation between them perpetually unreasonable and intolerable to the plaintiff.

'The court further finds that the sum of $15 per month is a reasonable sum to be allowed to the plaintiff for the care of the minor child hereinafter awarded to her custody.

'Wherefore, by reason of the law and the facts, it is hereby ordered, adjudged, and decreed that the bonds of matrimony heretofore and now existing between plaintiff and defendant be dissolved, and that the parties and each of them be freed and released from the obligations of the same.

'It is further ordered, adjudged, and decreed, that the custody of the infant child, Luella Josephine, shall be and is hereby awarded to the plaintiff, and that the custody of the infant child, Eva Irene, shall be and is hereby awarded to the defendant.

'It is further ordered, adjudged, and decreed that on each and every Friday evening the defendant may take the infant child, Luella Josephine, and keep her until the Saturday evening following, and that on every Saturday evening the plaintiff may take the infant child, Eva Irene, and keep her until the following Sunday evening, during school terms. That during vacations the plaintiff shall have the custody of both children one-half the time, and the defendant shall have the custody of both children one-half the time. That the defendant pay to the plaintiff on the 1st day of each and every month commencing on the 1st day of February, 1925, the sum of $15 for the care of said infant child, Luella Josephine.

'Done in open court this 16th day of January, A. D. 1925.

'C. W. Pomeroy, Judge.'

Both parties were bona fide residents of Flathead county, Mont from the time of their marriage until after the rendering of that decree of divorce. Appellant, Edward Motichka, has been at all times since then a resident of that county in Montana. Since the rendering of the divorce decree appellant has at all times complied fully with its terms and spirit. Some time after the rendering of the divorce decree, respondent, Mrs. Motichka, now Mrs. Rollands, moved to the state of Washington with the child, Luella Josephine, which had been awarded to her by the decree of the Montana court, and thereafter was...