Reed, Application of

• Decision Date: 15 June 1950
• Docket Number: No. 32761,32761
• Citation: 43 N.W.2d 161,152 Neb. 819
• Parties: Application of REED. REED v. REED et al.
• Court: Nebraska Supreme Court

Page 161

43 N.W.2d 161

152 Neb. 819

Application of REED REED v. REED et al.

No. 32761.

Supreme Court of Nebraska.

June 15, 1950.

Syllabus by the Court

1. In general, the writ of habeas corpus has been extended to, and may be used in, controversies regarding the custody of infants. Such proceedings are governed by considerations of expediency and equity, and should not be bound by technical rules of practice.

2. After the court's jurisdiction has been invoked by habeas corpus petition seeking custody of a child, the child is a ward of the court and its welfare lies in the hands of the court.

3. In a controversy for the custody of an infant of tender years, the court will consider the best interest of the child, and will make such order for its custody as will be for its welfare, without reference to the wishes of the parties.

4. The jurisdiction of a state to regulate the custody of infants found within its territory does not depend upon the domicile of the parents, but has its origin in the protection that is due to the incompetent or helpless.

5. The jurisdiction of a state to regulate the custody of infants found within its territory does not depend upon the domicile of the child, but it arises out of the power that every sovereignty possesses as parens patriae to every child within its borders to determine its status and the custody that will best meet its needs and wants, and residence within the state suffices even though the domicile may be in another jurisdiction.

6. A decree of divorce of a court of another jurisdiction, awarding the custody of the child of the parties to one of them, rendered while the child is in this jurisdiction, does not preclude the courts here from determining the question of the custody of the child; and in a habeas corpus proceeding brought to enforce such foreign decree, the full faith and credit clause of the Constitution is not involved.

James I. Shamber, Grand Island, Joseph H. Glass, Kansas City, Mo., for appellant.

Davis & Vogeltanz, Ord, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

MESSMORE, Justice.

This is a habeas corpus action brought by the petitioner in the district court for Sherman County to obtain the custody of a minor daughter from the respondents, the child's father and paternal grandparents. The basis for her cause is that the minor child is unlawfully and forcibly detained by the respondents in violation of a decree of the district court for Wyandotte County, Kansas. The petitioner was granted a decree of divorce from her husband Leslie W. Reed on her answer and cross-petition to a supplemental petition filed by him in the district court for Wyandotte County, Kansas. The decree found the petitioner to be a fit and proper person to have the custody of the minor child. The husband, represented by counsel who appeared before the district court for Wyandotte County, Kansas, orally objected to the jurisdiction of the court over the custody of the child. No evidence was offered in the husband's behalf. Decree was rendered as heretofore stated.

The respondents' defense to the instant action may be summarized as follows: That the decree of divorce awarding petitioner the custody of the minor child involved in this proceeding was void for want of jurisdiction over the child; that the best interests and welfare of the child required the custody of the child to be awarded to the respondent father or one or both of the other respondents; and that the relief prayed for by the petitioner should be denied.

Hearing was had before the district court. Thereafter the trial judge rendered a decree finding generally in favor of the respondents and against the petitioner, awarded the custody of the minor child to its father, Leslie W. Reed, and dismissed petitioner's application for the writ. Upon the overruling of the motion for new trial, the petitioner appeals.

The petitioner, as appellant in this court, assigns as error that the decree of the district court is contrary to law and to the evidence. In support of this contention the appellant objected to and moved to strike all testimony and evidence relating to the fitness and suitability of the appellant to have the care, control, and custody of the minor child, prior to the judgment and divorce decree in the district court for Wyandotte County, Kansas, rendered June 21, 1948, awarding the custody of the child to the appellant, on the grounds of res adjudicata, and that the decree so awarded by the district court for Wyandotte County, Kansas, should be given full faith and credit as provided for by Article IV, section 1, of the Constitution of the United States.

Apparently the appellant relies on the following authorities which, for convenience, we are numbering separately:

1. A decree awarding custody of a child, or modifying a prior decree in this respect, will be considered binding and recognizable in another state even though the child was physically outside of the state. See, Annotation in 9 A.L.R.2d 454, cases cited under part V, section 11, Jurisdiction of foreign court (validity of prior foreign award); Wear v. Wear, 130 Kan. 205, 285 P. 606, 72 A.L.R. 425.

2. Where the custody of a child has been awarded to one parent by a court having jurisdiction so to do, the right of this parent will be recognized by other states. The facts upon which the award was based have become res adjudicata, and cannot be reexamined in the second state. This rule affords exactly the same recognition to a decree of a foreign court that would be afforded to an adjudication within the forum, for it is well established that a decree awarding custody may be modified or changed by the court making it as circumstances may warrant. See, Kruse v. Kruse, 150 Kan. 946, 96 P.2d 849; Burrowes v. Burrowes, 64 App.D.C. 392, 78 F.2d 742; Wear v. Wear, supra; 25 Am.Jur., Habeas Corpus, § 82, p. 206. This estoppel extends only to conditions which existed at the time of the original decree. The second court may examine any facts which have occurred since the original decree which throw light on the fitness of the parents to have the custody of the child. Kruse v. Kruse, supra; Wear v. Wear, supra; Annotation in 9 A.L.R.2d 454.

3. The changed conditions must be substantial, and only a change in circumstances and conditions materially affecting the existing welfare of the minor, occurring since the former adjudication, may properly become the subject of inquiry and the basis of a change in the award of the minor's custody. In addition to the authorities above cited, see: Evens v. Keller, 35 N.M. 659, 6 P.2d 200; Albright v. Albright, 45 N.M. 302, 115 P.2d 59; In re Alderman, 157 N.C. 507, 73 S.E. 126, 39 L.R.A.,N.S., 988; Kenner v. Kenner, 139 Tenn. 211, 201 S.W. 779, L.R.A.1918E, 587; Milner v. Gatlin, 139 Ga. 109, 76 S.E. 860.

4. As conventionally stated, the rule has been that the most the full faith and credit clause can require is that the prior ruling shall be deemed conclusive in the absence of an asserted change in circumstances. See, Yarborough v. Yarborough, 290 U.S. 202, 54 S.Ct. 181, 189, note, 19, 78 L.Ed. 269, 90 A.L.R. 924; Calkins v. Calkins, 217 Ala. 378, 115 So. 866.

In general, the writ of habeas corpus has been extended to, and may be used in, controversies regarding the custody of infants. Such proceedings are governed by considerations of expediency and equity, and should not be bound by technical rules of practice. See, 39 C.J.S., Habeas Corpus, § 41, p. 568; Hanson v. Hanson, 150 Neb. 337, 34 N.W.2d 388.

After the court's jurisdiction has been invoked by habeas corpus petition seeking custody of a child, the child is a ward of the court and its welfare lies in the hands of the court. See Hanson v. Hanson, supra.

This jurisdiction, in habeas corpus actions instituted in the courts of this state for the custody of a minor child, has for a period of more than 60 years adhered to the following rule. In Sturtevant v. State, 15 Neb. 459, 19 N.W. 617, 48 Am.Rep. 349, it was held: 'In such a controversy for the custody of the child, the order of the court should be made with single reference to the best interests of such child.'

In the opinion the court said: 'But rather, taking our statue as a general guide, we will look to the particular necessities of the case, and give our special attention to the best interests of the child about whom this unfortunate controversy has arisen.' See, also, Giles v. Giles, 30 Neb. 624, 46 N.W. 916; State ex rel. Filbert v. Schroeder, 37 Neb. 571, 56 N.W. 307; Schroeder v. State ex rel. Filbert, 41 Neb. 745, 60 N.W. 89; Norval v. Zinsmaster, 57 Neb. 158, 77 N.W. 373, 73 Am.St.Rep. 500; State ex rel. Thompson v. Porter, 78 Neb. 811, 112 N.W. 286; State ex rel. Britton v. Bryant, 95 Neb. 129, 145 N.W. 266; State ex rel. Edmisten v. Highberger, 103 Neb. 258, 170 N.W. 906; In re Application of Schwartzkopf, 149 Neb. 460, 31 N.W.2d 294; Kaufmann v. Kaufmann, 140 Neb. 299, 299 N.W. 617; Hanson v. Hanson, supra.

It will be observed that in this jurisdiction, in a controversy for the custody of an infant of tender years the court will consider the best interests of the child and will make such order for its custody as will be for its welfare without reference to the wishes of the parties. The welfare of the child is the primary consideration to which all other questions must yield, and the court must consider, not only the spiritual and temporal welfare, but the minor's further education, training, and morals of the contesting parties, or for that matter some other party to whom custody of the child might be awarded if fit and suitable to best take care of the child.

With further reference to the appellant's contention that evidence relating to the fitness and suitability of the appellant to have the care, control, and custody of the minor child here involved should have been stricken upon motion made by the...