Reineke v. Northerner

Decision Date04 April 1949
Docket Number17817.
Citation84 N.E.2d 900,119 Ind.App. 539
CourtIndiana Appellate Court

Appeal from Daviess Circuit Court; Phillip D. Waller, Judge.

Samuel E. Dillin and S. Hugh Dillin, both of Petersburg, for appellant.

Jack E. Hayes, of Washington (Gray & Waddle, of Petersburg, of counsel), for appellee.


At one time the appellant and the appellee were husband and wife. They were divorced on the first day of December, 1939, by judgment of the Daviess Circuit Court which decreed, inter alia, 'that the care and custody of the infant daughter of the plaintiff and defendant, Maybelle Northerner, born June 16, 1937, be and she is hereby awarded to the defendant' (the appellant herein). Shortly thereafter the appellant married one Edward R. Reineke of Cary, Illinois and, together with her daughter Maybelle, took up residence in said city where she has since resided with her said husband. On the 6th day of January, 1948, the appellee filed a verified petition in said Daviess Circuit Court in which he asked that said decree of divorce insofar as it pertains to the custody of his daughter Maybelle, be modified in that the custody of said child be granted to him. The court fixed the 30th day of January 1948, for a hearing on this petition and ordered notice to the appellant accordingly. Pursuant to this order the clerk of the Daviess Circuit Court, omitting caption and signature issued the following notice:

'You are hereby notified that Harold W. Northerner has filed his petition in the Daviess Circuit Court of Daviess County, Indiana, asking that you be ordered to appear in said Court and show cause why the order heretofore made on December 1, 1939, should not be modified and plaintiff in the above entitled cause be granted the care and custody of the infant child to this union, Maybelle Northerner, born June 16, 1937.

'Now you are ordered by the Daviess Circuit Court of Indiana to appear in said Court at 9 A.M. on the 30th day of January, 1948, and show cause why the order heretofore made on December 1, 1939, should not be modified as requested above.'

On the 9th day of January, 1948, said notice was returned to the clerk of the Daviess Circuit Court with the following endorsement:

'State of Illinois, County of McHenry, SS:
'I have duly served the within by delivering a true copy thereof personally to Aline Reineke, RFD #1, Cary, Illinois.
'Fred C. Bau, Sheriff,
'By/s/Lyle R. Hutchinson, Deputy.'

The appellee's petition came on for hearing January 30, 1948, and upon the appellant's failure to appear she was called and defaulted in due course. After such default the appellee was permitted to amend his petition by interlining the following allegation: 'That the said defendant Aline Reineke is not a fit and proper person to have the care and custody of said child, Maybelle Northerner.' The court thereupon proceeded to hear said amended petition and at the conclusion thereof entered the following order: 'It is, therefore, considered, ordered and adjudged by the court that the order heretofore entered herein with respect to the custody of Maybelle Northerner, born June 16, 1937, be modified in this, to-wit: that the plaintiff Harold W. Northerner is hereby granted the care and custody of Maybelle Northerner, the child of the parties, until the further order of the court herein.' Shortly thereafter the appellant filed a complaint in the Daviess Circuit Court against the appellee in which she alleges facts substantially as we have set them out above and asks that said judgment of January 30, 1948, be declared void and set aside. A demurrer was sustained to this complaint and upon the appellant's refusal to plead over judgment was rendered accordingly. The appellant contends that this was error because the facts admitted by the demurrer show that when the court entered the judgment in question (1) it had no jurisdiction over the subject matter of the litigation; and (2) it had no jurisdiction over the person of the appellant.

Perhaps the most important question presented by this appeal involves the jurisdiction of the court over the subject matter when it entered the judgment which is the subject of this controversy. In this connection the appellant contends, with the support of decisions from New York, Texas and Georgia that the relation of parent and child is a civil status, peculiar to the jurisdiction of the state wherein they are domiciled and beyond the power of another state to change or regulate. Therefore when a parent, who has been given the uninhibited custody of an infant child by divorce decree, establishes legal residence in another state, the latter state alone has jurisdiction to control and regulate such relationship. The states so holding seem to regard the efforts of the foreign court, originally fixing the custody of the child, to continue its jurisdiction after the child, through its parent, has acquired a new domicile in another state, as an officious intermeddling with a matter in which it has no concern. People ex rel. Campbell v. Dewey, 1898, 23 Misc. 267, 50 N.Y.S. 1013. These decisions, however, have their origin in a situation in which a litigant, seeking to enforce a judgment of his own state, brings himself in direct conflict with the laws of the state at whose hands he seeks relief. We have no such question before us and we are not now concerned with the enforcibility of the judgment in suit. All we are called upon to decide in this connection is--did the Daviess Circuit Court have...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT