Pukas v. Pukas, 9872

• Decision Date: 04 March 1947
• Docket Number: No. 9872,9872
• Parties: Margaret Pukas v. Maxine M. Pukas, et al.
• Court: West Virginia Supreme Court

129 W.Va. 765

Margaret Pukas

v.Maxine M. Pukas, et al.

No. 9872

Supreme Court of Appeals of West Virginia.

Submitted January 9, 1947.

Decided March 4, 1947.

1. Habeas Corpus

A petition in habeas corpus seeking the custody of an infant is addressed to the sound discretion of the court and an order of a circuit court awarding custody will not be reversed unless its discretion appears to have been abused.

2. Parent and Child

"* * * the court is in no case bound to deliver the child into the custody of any claimant, but may leave it in such custody as the welfare of the child at the time appears to require." Green v. Campbell, 35 W. Va. 698, Pt. 4, Syl., 14 S. E. 212.

Appeal from Circuit Court, Preston County.

Habeas corpus proceeding by Margaret Pukas against Maxine Pukas and another for purpose of recovering custody of three year old Laura Pukas, the child of respondent Maxine M. Pukas by John W. Pukas, her husband at that time and son of the relator. From an order quashing the return and warding the control and custody of the child to petitioner, the respondents appeal.

Affirmed.

Fox, President, and Lovins, Judge, dissenting.

J.V. Gibson, Cramer W. Gibson and Milford L. Gibson, for appellants.

F. E. Parrack, for appellee.

Kenna, Judge:

This habeas corpus proceeding was brought in the Circuit Court of Preston County by Margaret Pukas against Maxine M. Pukas and David F. Chidister for the purpose of recovering from the respondents the custody of three year old Laura Pukas, the child of Maxine M. Pukas by John W. Pukas, her husband at that time and the son of relator. From an order quashing the return of the respondent and awarding the control and custody of Laura Pukas to Margaret Pukas, her paternal grandmother, this Court granted an appeal and supersedeas. No proof was taken in the Circuit Court and its order apparently is based upon the undenied averments of the relator's verified petition. The petition is not signed by the relator nor by counsel although the supporting affidavit that immediately follows its conclusion is properly executed by the relator and verifies the petition's contents without qualification. Since the absence of the formal signing of the petition, as distinguished from its required verification, is an ommission which could have been quite easily corrected in the Circuit Court, and since the respondents appeared and filed their answer to the petition without raising the question, we are of the opinion that on appeal in this respect the petition should be regarded as sufficient.

The petition alleges that in January, 1946, John W. Pukas was awarded a divorce from Maxine M. Pukas, and that Laura Pukas, aged three, of whom they were the parents, was committed to the custody of her father; that on February 13, 1946, Maxine M. Pukas brought "custody proceedings" in the Municipal Court of Philadelphia where all parties concerned were located, and that in that proceeding she agreed in open court with the father, then in the service of the United States Army, that the best interests of the child required that her custody be awarded to petitioner and that the court decreed accordingly; that on March 27, 1946, after the father had left this country, Maxine M. Pukas filed a petition to reopen the custody proceeding, and that, the Municipal Court of Philadelphia not then nor since then having acted upon the petition, the legal custody remained with petitioner, and petitioner kept the child until Sunday, April 14, 1946, when Maxine M. Pukas called at petitioner's home at ten o'clock in the morning and took the child for a walk, not returning her to petitioner's home but, without informing petitioner, took the child from Philadelphia to Preston County, West Virginia, where the child is now being illegally kept and detained by Maxine M. Pukas and by David F. Chidister, her father and the maternal grandfather of the child; that the detention of the child in Preston County by Maxine M. Pukas and David F. Chidister is in violation of the decree of the Municipal Court of Philadelphia and constitutes a contempt of its authority, and that petitioner is amply able, physically, financially and morally, to care properly for the child and that the child's best interests will be favored and conserved if a writ of habeas corpus is awarded petitioner.

There appear in this record duly authenticated copies of the orders of the Second Judicial District Court of Nevada in the divorce proceeding of John W. Pukas against Maxine M. Pukas, as well as a transcript of the testimony, also authenticated, in that proceeding. There also appears a copy of the record in the proceeding before the Municipal Court of the City of Philadelphia, duly authenticated. These papers are included in the record by the certificate of the Circuit Clerk of Preston County, stating that they were filed as exhibits with the petition on June 10, 1946. Otherwise they are not identified nor made a part of the record. It seems to be apparent, however, that they were considered by the trial judge, and since respondent's return attempts a collateral attack upon both the proceedings and raises no question concerning the consideration of the record of either, we are disposed to consider them here, although that course does not constitute an approval of a decidedly irregular practice of considering as exhibits papers not referred to nor identified by the pleadings.

The allegation of the petition to the effect that the Philadelphia Court awarded the custody of the child to the petitioner is in error. It did award custody to John W. Pukas with the understanding, shown by the transcript, that he was then in the armed service of the United States ordered overseas and that the child would be left by him in the actual care of his mother, Margaret Pukas, the petitioner. To this Maxine M. Pukas agreed.

Speaking strictly, the writ of habeas corpus involves only the question of whether thedetention of the body of an individual is lawful or unlawful and the writ, if made permanent, simply restores freedom to the individual whose restraint is involved. It does not award custody to another. The petitioner need not be the person whose restraint is involved but merely some person who has a legally justified interest in his freedom, such as father, son, brother or aunt, who is not seeking to establish a superior right to custody, but simply to end one that is unlawful. The return or answer may, but need not, traverse the allegations of the petition, but it must show a lawful right to the possession of the subject's person. The matter is usually based upon the sufficiency of the return and the evidence introduced to sustain it. If the confinement is unlawful, the allegations of the petition become inconsequential. See 25 Am. Jur. 234.

However, the procedure is different where the custody of an infant is concerned. Habeas corpus then becomes like unto a chancery proceeding in rem, with the child as the res. 25 Am. Jur. 202. The welfare of the child is the outstandingly paramount question and the proceeding is addressed to the sound discretion of the court, the exercise of which will not be reversed unless plainly abused. Frame v. Wehn, 120 W. Va. 208, 212, 197 S. E. 524. The court is not bound by any particular rule to deliver to any particular claimant the custody involved, the law recognizing no absolute right to the child's custody, although by statute in West Virginia a husband and wife while living together are accorded their child's joint custody.

"But the court is in no case bound to deliver the child into the custody of any claimant, but may leave it in such custody as the welfare of the child at the time appears to require." Green v. Campbell, 35 W. Va. 698, Pt. 4, Syl., 14 S. E. 212.

To the same effect is the holding of this Court in Stapler v. Leamons, 101 W. Va. 235, 132 S. E. 507, citing the Green case at page 241. The latter case also deals with a foreign decree and states the recognized rule that the order of a court of record, foreign or domestic, awarding custody, is not binding if, since its date, the circumstances have undergone a considerable change. Here we believe they have not. As approving the holding in the Green case see also Frame v. Wehn, 120 W. Va. 208, 197 S. E. 524.

Since habeas corpus proceedings involving the contested custody of infants are closely related to chancery proceedings in which issues are developed by the pleadings, due to the fact that they are not simply an attack upon an unlawful detention, but are controversies between rival claimants to the care and custody of an infant, this case turns largely, in our opinion, upon whether the Circuit Judge erred in quashing the return of the respondent and entering an order awarding the custody of Laura Pukas to the petitioner, Margaret Pukas, based upon the allegations of the petition accompanied by a record of the divorce proceedings in Nevada and a record of the custody proceedings in the City of Philadelphia, both of which contain orders awarding the custody of Laura Pukas to her father, John W. Pukas.

We have carefully examined the return and find that it contains no specific denial of the material allegations of the petition. In our opinion it sets up no defense except the general denial that the custody of Laura Pukas...