Stapler v. Leamons Al.

• Decision Date: 23 March 1926
• Docket Number: (No. 5615)
• Citation: 101 W.Va. 235
• Court: West Virginia Supreme Court
• Parties: R. R. Stapler v. M. Louise Leamons al.

101 W.Va. 235

R. R. Stapler

v.M. Louise Leamons al.

(No. 5615)

Supreme Court of Appeals of West Virginia.

Submitted March 9, 1926.

Decided March 23, 1926.

Divorce; Foreign Decree or Order Awarding Custody of Child in Divorce Case Held Not Res Judicata in Subsequent Proceeding in State Involving Custody, Where There Has Been Change in Conditions Since Rendition of Foreign Judgment Rendering Modification Desirable (Code, C. 130, V9).

A foreign decree or order awarding the custody of a minor child in a divorce suit is not res judicata in a subsequent proceeding in this State, involving the custody of the infant, where there has been such change in the conditions since the rendition of the foreign judgment as to render its modification desirable for the welfare and protection of the child.

Hatcher, Judge, absent.

(Divorce, 19 C. J. § 831.)

(Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi.)

Original application for habeas corpus by R. R. Stapler against M. Louise Leamons and another to gain custody of his infant child, Edward Russell Stapler.

Writ refused.

Morton, Mohler & Peters, for petitioner.

England & Ritchie and W. C. McKee, for respondents.

Litz, President:

The petitioner R. R. Stapler seeks by writ of habeas corpus to obtain from the respondents, M. Louise Leamons and J. E. Skaggs, the custody of his infant child, Edward Russell Stapler.

M. Louise Leamons is the daughter of J. E. Skaggs, who for many years has lived with his family in the city of Charleston. January 11, 1919, when but eighteen, she intermarried with R. R. Stapler, thirty-eight years of age. The child, Edward Russell Stapler, was born to this union April 11, 1922. They lived together after the marriage, first in Chicago, next in Charleston, and then in Dallas, Texas, until June 9, 1924, when he instituted suit for divorce, in Dallas, forcing her to return on that date to Charleston, where she and the child have since resided with her parents.

The enforced separation on his part was due to the fact that she had become addicted to the use of morphine. The habit resulted from the administering of the drug to her under medical direction for menstrual suffering. It had been growing gradually for two or three years before coming to his knowledge in April, 1924. At this time she was in such physical and mental state from the use of the opiate that it became necessary to place her under the supervision of a specialist and the care of a trained nurse by night and day for three or four weeks. He having determined to cast her aside, she sent for her father, who, after reaching Dallas, June 5, 1924, endeavored without avail to dissuade Stapler from this avowed purpose. Notwithstanding her then serious nervous condition, necessitating the attention of a physician, and the fact that she had attempted suicide the previous Saturday night immediately after final announcement of his fixed intention to secure a divorce, on Monday morning, June 9, 1925, the petitioner instituted suit for divorce in the District Court for the 95th Judicial District of Texas; and in the afternoon of that day, an hour or two before she left Dallas in company with her father and child for Charleston, one M. S. Church, a practicing attorney of Dallas, and counsel for Stapler, presented to her an answer for execution to be filed in the proceeding.

The following is the only charge in the petition filed by the petitioner in the suit as ground for divorce:

'' Plaintiff further alleges and represents that the defendant has been guilty of cruel and unreasonable conduct towards him, has been quarrelsome and nagging, all of which said action by the defendant has caused plaintiff great humiliation, shame, mental and physical suffering, all of which has rendered their further living together insupportable."

Relative to the custody and control of the child, the petition represented:

,;' That there was born to him and defendant one child, Edward Russell Stapler, a boy now about the age of two years-and two months, and in this connection plaintiff says that he is the proper person to have the care, control and management of said child";

and asked for temporary order, giving him the care, control and management of said child, and that upon final hearing he be decreed the custody, control and management of said child.

The answer, signed by M. Louise Stapler, and acknowledged before said M. S. Church, as notary public, after waiving issuance and service of process, states:

"It is also agreed that in event the divorce is granted herein that the custody, control and management of said infant child, Edward Russell Stapler, may be decreed to the plaintiff herein".

She did not appear at the trial and the petitioner obtained an order, July 11, 1924, dissolving the marriage and awarding the custody, control, care and management of the minor child, Edward Russell Stapler, to him, subject to the right of the mother "to visit and see the child at all reasonable times".

The petition in this case, as originally filed December 15, 1925, after setting up the divorce proceeding and the order dissolving the marriage and decreeing to the petitioner the custody and control of the infant, alleges that by reason of the broken mental and physical condition of his wife on June 9, 1924, he and the respondent J. E. Skaggs entered into an oral agreement that the child might be brought with its mother back to Charleston, but to be later returned on request to the petitioner; that "the defendant M. Louise Leamons is not now and has not been for a period of two years a fit person to have the care, custody and control of said infant, Edward Russell Stapler; that for a long time, to-wit, at least three years prior to the granting of said divorce, she was a drug addict, that is, an habitual user of morphine, to such an extent that she was frequently thereby mentally un- balanced; that she has recently remarried to one Earl Leamons, who is not able to maintain a home for her and said infant, and that it is necessary for her to keep and maintain said child in the home of her father, the defendant J. E. Skaggs, whose wife is an invalid, and who is likewise unable and incapable of rearing and maintaining said infant"; and that "both the defendant M. Louise Leamons and her present husband, Earl Leamons, are now and have been for the past few months, using 'dope'; that both of them keep company with and frequently visit in the homes and places of abode of people of immoral reputation in the City of Charleston, West Virginia, and are otherwise guilty of conduct unbecoming those occupying the position of guardians and custodians of an infant child".

On motion of the petitioner an order was entered herein January 19, 1926, striking from the petition all charges of unfitness against the respondent, M. Louise Leamons, and her present husband, Earl Leamons, to whom she was married in September, 1925. By this action the petitioner rests his case upon the decree of the Texas court, which lie contends must be recognized and enforced by this Court, under the full faith and credit clause of the Federal Constitution, as declared in Section 19, Chapter 130 of our Code, unless there has been since its rendition a material change in the condition of the petitioner as well as of the respondent M. Louise Leamons, affecting their respective fitness for the trust.

The respondent M. Louise Leamons denies the application of the Texas court order: (1) on the ground that it was obtained through fraud, and (2) because the facts, existing at the time of the entry of said order, have so changed as to authorize a different judgment.

She denies that there was...