People ex rel. Noonan v. Wingate

• Citation: 376 Ill. 244,33 N.E.2d 467
• Decision Date: 10 April 1941
• Docket Number: No. 26010.,26010.
• Parties: PEOPLE ex rel. NOONAN v. WINGATE et al.
• Court: Supreme Court of Illinois

376 Ill. 244

33 N.E.2d 467

PEOPLE ex rel. NOONAN

v.WINGATE et al.

No. 26010.

Supreme Court of Illinois.

April 10, 1941.

Habeas corpus proceeding by the People on the relation of Ethel M. Noonan against John Leonard Wingate and wife involving the custody of a child. The child was remanded to the custody of respondents and petitioner appeals.

Affirmed.Appeal from Circuit Court, Union County; D. F. Rumsey, Judge.

Joseph A. Hines, of Boston, Mass., Feirich & Feirich, of Carbondale, and Baker, Lesemann, Kagy & Wagner, of East St. Louis, for appellant.

John H. Carter, of Anna, and R. Wallace Karraker, of Jonesboro, for appellee.

MURPHY, Justice.

In a habeas corpus action in the circuit court of Union county, Paula Noonan, an infant, was remanded to the custody of appellees John Leonard Wingate and Mary DeWolf Wingate. Ethel M. Noonan, appealed direct to this court, a constitutional question being involved.

Paula Noonan was the daughter of Paul Noonan and Ruth Wingate Noonan. When they were married in 1935 their domicile was Middlesex county, Massachusetts. Immediately after their marriage they established a home in the city of Waltham in that county. In 1937, he entered the employment of a fire insurance company, working in and about that city. Later he was transferred to Philadelphia, Pennsylvania, and he and his wife moved their household effects to that city and began housekeeping. In a few months his work was completed there and they returned to Waltham. He worked in the Boston office of his employer a short time and then was transferred to Springfield, Massachusetts. They started housekeeping in that city and after remaining there about a year returned to Waltham. In a few days he was transferred to Atlanta, Georgia. They arrived in Atlanta in the early part of June, 1939, and their household effects were sent later. They lived at a hotel a few days, when Mrs. Noonan became ill and was taken to a hospital. Paula was born at the hospital June 20, and her mother died June 29. In July, Paul Noonan completed arrangements with appellees, who lived in Anna, Illinois, to care for his child, and the latter part of the month he delivered Paula to them. Paul Noonan returned to his employment at Atlanta, Georgia. The duties of his employment took him into several States but Atlanta continued as his headquarters. He never established a home in Georgia. While traveling in Virginia he received injuries from which he died October 29, 1939. Between the date of the child's arrival in Anna and Paul's death he made two trips to Anna to see his child. He paid appellees for their services and, in addition, furnished her clothing.

Appellant is the paternal grandmother of Paula and is domiciled in Waltham, Middlesex county, Massachusetts. Appellees are husband and wife, and have their domicile in Illinois, residing in Anna. John Leonard Wingate is the maternal uncle of Paula. Other near relatives of the child are James Francis Noonan, the husband of appellant, a brother and two sisters of Paul Noonan, all of whom are adults and reside in Waltham, Massachusetts. Her maternal grandmother and a maternal aunt reside in Waltham. Another maternal aunt resides in New York City.

November 27, 1939, appellant petitioned the probate court of Middlesex county, Massachusetts, to appoint her or some other suitable person as guardian of Paula Noonan. It was alleged in the petition that Paula was in Anna, Union county, Illinois, and had property in Middlesex county. The amount of the property was not stated, but in a certificate attached to her bond, appellant stated on information and belief that Paula owned no real estate but had personal estate estimated at $500. The probate court granted the prayer of the petition and appointed appellant as guardian of the person and estate. A bond in the sum of $1,000 was filed and letters of guardianship issued November 25, 1939.

Appellant's petition in this action is in her individual capacity and as guardian of the estate and person of Paula Noonan. She claims the right of possession (a) by force of her appointment as guardian of the person in Massachusetts, (b) because she is the natural guardian, and (c) that the best interests of the child require she be placed in her possession. No question of fact is raised as to the moral fitness of any of the parties. No complaint is made as to the care and attention the child is receiving from appellees and no claim is made that the care and attention appellant would give the child, if it were in her custody, would not be such as a child of tender years should receive. Appellant desires possession of the child that she may take her into her own home in Massachusetts.

Appellant contends the order of the probate court of Massachusetts appointing her guardian of the person is entitled to full faith and credit under section 1 of article 4 of the Federal constitution.

The petition filed by appellant in the probate court in Massachusetts stated the child was then at Anna, in this State. No reference was made to the fact she was then in the possession of appellees. Unquestionably, the probate court of Massachusetts had jurisdiction to appoint a guardian of the estate of Paula Noonan based on the allegation that the infant had property in that jurisdiction, but in making the appointment of a guardian of the person the probate court had to determine whether it was for the best interests of the child that she be placed in the possession of such guardian. The child being out of the jurisdiction of the court, and the ones who then had possession of her not being before the court, it is obvious that the scope of that inquiry would be limited to a determination of the fitness of the person to be appointed as guardian and would not involve a consideration of whether the child was then receiving better care and attention in the possession of appellees than she would in the possession of such guardian. In all cases where the custody of a minor is involved, the courts are in accord that the best interests of the child is the primary consideration. This consideration may even go to the extent of supplanting the right of a parent to the custody of the child. The probate court of Massachusetts, having been thus limited in its scope of inquiry, it can not be said that mere proof of the order of appointment of a guardian of the person by that court requires this court to deliver her into the possession of appellant as such guardian without a full consideration of the evidence to determine what is best for the child.

Decrees entered in divorce actions disposing of the custody of a child then outside the jurisdiction of the State where the decree is entered are generally held not to be entitled to full faith and credit in a proceeding involving the child's custody in an action begun in a State other than where the decree was entered. Kline v. Kline, 57 Iowa 386, 10 N.W. 825,42 Am.St.Rep. 47;Rodgers v. Rodgers, 56 Kan. 483, 43 P. 779;Seeley v. Seeley, 30 App.D.C. 191,12 Ann.Cas. 1058;Weber v. Redding, 200 Ind. 448, 163 N.E. 269;Harris v. Harris, 115 N.C. 587, 20 S.E. 187,44 Am.St.Rep. 471.

In Cooley's Constitutional Limitations, fourth edition, page 499, in discussing the jurisdiction of a court in a divorce action where the defendant was a nonresident and service was by publication it is said: ‘The publication which is permitted by the statute is sufficient to justify a decree in these cases changing the status of the complaining party, and thereby terminating the marriage; and it might be sufficient also to empower the court to pass upon the question of the custody and control of the children of the marriage, if they were then within its jurisdiction. But a decree on this subject could only be absolutely binding on the parties while the children remained within the jurisdiction; if they acquire a domicile in another State or country, the judicial tribunals of that State or country would have authority to determine the question of their guardianship there.’ The principles announced in the cases cited are applicable here.

It is also contended that the domicile of the child has a controlling effect on appellant's rights as guardian and, related to this, is the contention that...