Sheehy v. Sheehy

• Decision Date: 25 June 1936
• Citation: 186 A. 1
• Parties: SHEEHY v. SHEEHY et al.
• Court: New Hampshire Supreme Court

186 A. 1

SHEEHY

v. SHEEHY et al.

Supreme Court of New Hampshire. Coos.

June 25, 1936.

[Copyrighted material omitted.]

Transferred from Superior Court, Coos County; James, Judge.

Habeas corpus by Francis Sheehy against Marie Sheehy and another, transferred on plaintiff's exception.

Case discharged.

Habeas corpus. The plaintiff's application for the writ was granted on June 26, 1935. On July 5, 1935, the writ was returned into court and the parties were heard by James, Judge, who reported the facts.

Francis and Marie Sheehy are husband and wife. No proceedings for divorce or legal separation have ever been brought by either of them. Prior to June, 1934, they were residents of New York, where they were married and where their minor child, Louise Marie, was born. During the first part of that year they broke up their home and separated, the child being taken by the father, and by him put out to board in different places with various of his relatives and friends.

In May of that year the defendant Marie, for the purpose of obtaining custody over her child, petitioned the Supreme Court of New York for a writ of habeas corpus. The writ was awarded and the parties were heard on June 4. As a result of this hearing, custody of the child was given to the parents on alternate months, the mother to have custody for the month of June, and both parties were restrained from removing the child from the state. In conformity with this order, the mother took the child, but in defiance of it brought her to Berlin in this state to the home of her father, the defendant Durant, where they have ever since remained.

In November, 1934, a month during which the plaintiff was entitled to the custody of his child under the New York decree, he demanded its custody from the defendants in Berlin, but his demand was refused.

On January 30, 1935, the Supreme Court of New York found that Marie had violated its order in that she had removed the child from the state and ordered her to return it to New York within five days after receipt by her of a copy of the order. She was not served with a copy of this order until June 29, 1935, and has never obeyed it.

At the hearing on the present petition the court ruled "that the right of the father, Francis Sheehy, to the custody of the child Louise Marie Sheehy is so far res adjudicata by virtue of the decree of the Supreme Court of New York dated January 30, 1935, * * * that the facts upon which that decree is based cannot be re-examined in this action."

The court found, however, "evidence of changed circumstances since the New York decree of June 4, 1934," and, as a result of these changed circumstances, stated his belief that the future welfare of the child required that she remain in the custody of the mother.

His final order, however, reads as follows:

"As it is understood that an appeal is to be taken from these findings and rulings, the following order is made:

"Pending final determination by the Supreme Court, the said Louise Marie Sheehy is placed in the temporary custody of the maternal grandparents, Joseph Durant and Matilda Durant, who shall neither remove nor permit removal of said child from the State of New Hampshire pending said appeal and final determination."

The court transferred the plaintiff's exceptions relative to the sufficiency of the evidence to support the finding of changed circumstances, and to the jurisdiction and authority of the court to make the order of custody quoted above.

Raymond K. Perkins, Laurence I. Duncan, and Robert W. Upton, all of Concord, for plaintiff.

Crawford D. Hening and Frank P. Blais, both of Berlin, for defendants.

WOODBURY, Justice.

"The jurisdiction of a state to regulate the custody of infants found within its territory does not depend upon the domicile of the parents. It has its origin in the protection that is due to the incompetent or helpless. * * * For this, the residence of the child suffices, though the domicile be elsewhere." Finlay v. Finlay, 240 N.Y. 429, 148 N.E. 624, 625, 40 A.L.R. 937, and cases cited. Furthermore, since the welfare of the child is the controlling consideration and since it is not chargeable with its parent's misconduct, this jurisdiction will be exercised even though the child was brought to this state by its parent fraudulently, and for the purpose of conferring jurisdiction over the question of custody, provided, however, that the child is, as in this case, too young to decide what is best for its own welfare. White v. White, 77 N.H. 26, 30, 31, 86 A. 353.

These rules are based upon sound reason and obvious necessity. Were they otherwise, that is if the question of custody could be passed upon only by the courts of the state of the infant's domicile, the temptation would be great to spirit the child beyond reach of the process of that state and thus render the law powerless to cope with the intolerable practice condemned in Gage v. Gage, 66 N.H. 282, 286, 29 A. 543, 545, 28 L.R.A. 829, "of snatching an infant ward by each of several guardians when he could see his time." It follows that the courts of this state have jurisdiction as to the parties.

The next question presented relates to the jurisdiction of the superior court as to the subject-matter. On this point it is argued that the question of custody is within the exclusive jurisdiction of the probate court, and that consequently the superior court, in giving temporary custody to the infant's maternal grandparents, was acting in a matter over which it had no jurisdiction. While it is true that Leclerc v. Leclerc, 85 N.H. 121, 155 A. 249, 74 A.L.R. 1348, stands for the proposition that, in the absence of pending or possible divorce proceedings, the superior court has no jurisdiction to appoint a permanent custodian of minors, it is also true that in that same case (85 N.H. 121, at page 125, 155 A. 249, 251, 74 A.L.R. 1348) it is clearly stated that temporary orders of custody may be made by the superior court as incidental to its power to "administer the summary and drastic remedy of habeas corpus."

It is further suggested, however, that the court exceeded its jurisdiction in making the statement that, "I cannot be unmindful of the fact that a little girl of seven years needs the constant attention which only a mother's love can give and I believe the future welfare of this child requires that she remain in her mother's custody." This is not a permanent award of custody to the mother. It is not a part of the decree at all. It is only an expression of opinion, and, as such, it is surplusage, without legal or binding effect upon the question of permanent custody. The only actual decree or order which the court made was that which placed the child in the temporary custody of its grandparents.

The plaintiff challenges the authority of the court to make this order upon two grounds. The first of these is that the question of custody is res adjudicata as between the parties by virtue of the decree of the New York court.

The writ of habeas corpus has two principal functions in the law. It may be used for its original purpose of testing the legality of the restraint imposed upon one who has been deprived of his liberty, or it may be used to determine the question of the right to the custody of a minor. When used for the former purpose, the doctrine of res adjudicata does not apply. Petition of Mcebus, 74 N. H. 213, 66 A. 641. But "when the writ of habeas corpus is used, not as a writ of liberty in the strict and original sense of the term, but only indirectly and theoretically as such, and as a means for inquiring into and determining the rights of conflicting claimants to the care and custody of a minor child, it is generally held that the doctrine of res adjudicata will apply, and where no material change of circumstances is shown to have arisen since the determination of a prior proceeding in habeas corpus, which has been adjudicated in a court of competent jurisdiction, the writ will not be granted by another court as a matter of right." 12 R. C.L. 1255; Freeman on Judgments (5th Ed.) vol. 2, § 829; 15 R.C.L. 872; Dawson v. Dawson, 57 W.Va. 520, 50 S.E. 613, 110 Am.St.Rep. 800; Knapp v. Tolan, 26 N.D. 23, 142 N.W. 915, 49 L.R.A.(N.S.) 83; Turner v. Turner, 86 N.H. 463, 169 A. 873. And such...