Shippen v. Bailey
| Citation | 303 Ky. 10 |
| Parties | Shippen v. Bailey. |
| Decision Date | 21 June 1946 |
| Court | United States State Supreme Court — District of Kentucky |
1. Habeas Corpus. — A habeas corpus proceeding by divorced mother to take from their father the custody of two minor children of the parties would partake of incidents of a suit in equity and would be considered to be one in rem, the children being the res, and the inquiry would extend far beyond the issues that were ordinarily involved in a habeas corpus proceeding.
2. Habeas Corpus. — In determining custody of minor children as between divorced parents, the best interests and welfare of the children is the supreme consideration, irrespective of the rights and wrongs of the contending parents, although their natural rights are entitled to due consideration.
3. Divorce. — In habeas corpus proceeding by divorced mother to take from their father the custody and control of two minor children of the parties, judgment of Ohio court in wife's divorce action granting her exclusive custody of the children, which judgment was rendered ten years before when children were mere infants, was not conclusive.
4. Divorce. — Custody provisions of a divorce decree have no extraterritorial effect upon questions of proper custody arising under circumstances materially changed with reference to welfare of the children.
5. Habeas Corpus. — In habeas corpus proceeding by divorced mother to take from their father the custody of two minor children of the parties, a girl 15 and a boy 13 years of age, father could not complain of chancellor's refusal to hear either child as a witness, where chancellor, in rendering his judgment, assumed that children would testify that they wanted to stay with their father.
6. Divorce. — Where divorced mother had obtained exclusive custody of children by divorce decree entered in Ohio and placed them in care of her mother in Pennsylvania, and about ten years thereafter father secured children and brought them to Louisville by misleading the grandmother, custody of children would be ordered returned to mother, and father, if he desired to obtain custody of children, should take recourse to courts of Pennsylvania or Ohio, wherever the children might be domiciled.
Appeal from Jefferson Circuit Court.
Joseph M. Hayse and Nellie S. Hayse for appellant.
Willie T. Puckett and Charles W. Logan for appellee.
Before Lawrence F. Speckman, Judge.
Affirming.
This is a habeas corpus proceeding by a mother to take from their father the custody and control of two children, a girl 15 and a boy 13 years old.
Before stating the facts, it may be well to observe that as it relates to this kind of a case, the proceeding partakes of the incidents of a suit in equity, and is considered to be one in rem, the child being the res, and the inquiry extends far beyond the issues that are ordinarily involved in a habeas corpus proceeding. The decision may not be based necessarily upon the legal right of the petitioner to have a child released from the custody of one who has him as though he were a captive, but the court deals with a matter of equitable nature and decides the issue from the view of the best interest and welfare of the children, as the present conditions seem to require. That is the supreme consideration, irrespective of the rights and wrongs of the child's contending parents, although their natural rights are entitled to due consideration. 25 Am. Jur., Habeas Corpus, Secs. 78, 80. There is, however, in the present case a question of legal right under a judgment of an Ohio court awarding the custody of these children to the mother exclusively.
The breaking up of this home seems to be one of the tragedies of the economic depression of the early period of the last decade. In 1933, Evans W. Shippen, of Louisville, could find no work. His wife went to the home of a sister in Rockport, Indiana, and their younger child was born there. The husband remained in Louisville seeking work and doing whatever odd job he could find. When the baby was a few weeks old the mother took her two children to the home of her parents on a farm in the Western part of Pennsylvania. The stories of the two parties as to who abandoned whom is contradictory, but it seems to us the better and supported evidence of this record relieves the husband of guilt of a legal abandonment. Hard times continued and the wife's family became very hostile toward her husband. He did not send any money for the care of his family because he had none. He testifies that his wife urged him to send funds for the purpose of having the little girl's teeth fixed. He was then working at a small hotel in Louisville for his room and board. A guest whom he knew, who apparently at the moment was not able to take care of himself, according to Shippen, turned over a ring to him to keep. He took the man's overcoat and hat and went to Cincinnati where he sold the ring for $50 and went to see his wife and children. He testifies that he gave her $25 and told her where the money came from and she rebuked him for it but took the money nevertheless. She denies all of this and maintains that he had never sent her any funds until a year or so afterward when he forwarded her $10 and she returned it indignantly. While in Pennsylvania Shippen was arrested and returned to Louisville, pleaded guilty to grand larceny, and went to the penitentiary for one year. After he served his term, he was restored to citizenship, but continued to be scorned by his wife and her family.
During this period the wife went to Cleveland, Ohio, about 150 miles from her parents' home, and went to work. She had the children with her in that city for a brief period, but found the arangements for their care to be unsatisfactory and returned them to her mother's home. In 1936, she sued for divorce and custody of her children in Ohio. Shippen was brought before the court by constructive service through publication. The decree was granted, but Shippen had no actual notice or knowledge of it until sometime in 1940. There is conflicting evidence as to his visitations or attempts to visit his wife, and children, but it is certain he was never welcome and was scorned by her and her people. He should not be censured too much for seeming inattention. He volunteered for the Army in 1...
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