State ex rel. Kleffman v. Bartholomew Circuit Court, 30413

• Docket Nº: No. 30413
• Citation: 200 N.E.2d 878, 245 Ind. 539
• Case Date: September 03, 1964
• Court: Supreme Court of Indiana

Page 878

200 N.E.2d 878

245 Ind. 539

STATE of Indiana on the relation of Herschel F. KLEFFMAN and

Doris M. Kleffman, Relators, v. The BARTHOLOMEW CIRCUIT COURT (being the 9th Judicial

Circuit of the State of Indiana) and Jack Rogers, as Special

Judge of said Bartholomew Circuit Court, in a cause pending

entitled and docketed under the caption in said Court as

follows: Carl O. Hooker vs. Patricia Anne Hooker and

Numbered 13266 on the records of said Court, Respondents.

No. 30413.

Supreme Court of Indiana.

Sept. 3, 1964.

Leon D. Cline, of Dobbins, King & Cline, Columbus, for relators.

Jack Rogers (Special Judge of Bartholomew Circuit Court, Franklin), pro se.

ARTERBURN, Judge.

This is an original action brought by the relators to compel the respondent court to reinstate relators' petition to intervene and hear the same and other related matters.

The facts presented to us show that a divorce decree was granted to Carl O. Hooker from his wife, Patricia, in June, 1955. At that time the wife was given the custody of one of their children, while the husband was given the custody of the other, Carmen Yvonne Hooker, the subject of this controversy.

The relators filed in the trial court a petition to modify the custody order as to Carmen, alleging that Carmen is now nine years of age and that her father has never had the custody of her; that he has never provided support for her or given her any attention as a parent; that she has been in the custody of the relators since the divorce. It is further alleged that the father has remarried and now wants the custody of Carmen and is threatening to seize the child unless restrained.

The trial court in which the divorce decree and custody order was entered granted the petition to intervene therein and permitted the filing of the petition to modify the custody order. It also upon petition, granted a restraining order against Carl O. Hooker. The record shows notice was given to both parties to the divorce judgment and both parents have entered appearances by attorneys.

Upon the appointment of a special judge, a motion to strike the petition to intervene was filed by the father. This was sustained and the restraining order dissolved. The relator now asks us to mandate the trial court to reinstate its previous orders and hear the matter on the merits. We granted a temporary writ.

The respondent court claims that the relators are strangers to the record in the divorce case and have no right to intervene to modify the judgment pertaining to the custody. This, as a general principle of law, is true. However, as to the custody order, different principles are applicable.

In the matter of the custody of children we have held many times that the court granting the divorce judgment and fixing the custody of the children has continuing jurisdiction thereafter, during their minority, over their care and custody. Haag v. Haag (1959), 240 Ind. 291, 163 N.E.2d 243; Duckworth v. Duckworth (1932), 203 Ind. 276, 179 N.E. 773; Manners v. State (1936), 210 Ind. 648, 5 N.E.2d 300; McDonald v. Short, Supt. (1921), 190 Ind. 338, 130 N.E. 536.

The paramount concern of the court is the welfare of the children, and the court retains jurisdiction of such matters without any specific reservation in the decree. Stone v. Stone (1902), 158 Ind. 628, 64 N.E. 86.

We may ask what is the remedy of the relators in this case, if we assume they are correct in what they allege and the welfare of the child entitles them to her custody? They cannot bring an action for a writ of habeas corpus since they have the physical custody of the child at this time. Must they permit the father to seize the child and subject it to such harassment and excitement in order to bring such an action?

The facts alleged, if proved, in our opinion are sufficient to show a substantial interest in the welfare of the child, held by the relators. The petition in substance alleges an abandonment of the child by the father and at least a consent to or acquiescence in the custody by the relators. They and the child whose physical custody they hold are real parties in interest and are entitled to be heard in the determination of the merits of the issue as to whether or not any modification of the original custody order is to be made.

Controversies of this kind should be settled in courts of law as the relators seek to do, rather than left to physical combat and abduction. It is alleged that an attempted abduction has occurred, to the detriment of the child's emotional condition. If the father refuses to bring an action in a court of law to determine the issues peaceably, then the relators are entitled to a forum and a hearing for that purpose. The respondent court is the forum for that determination.

The temporary writ heretofore issued is made permanent.

ACHOR, C. J., concurs with opinion.

MYERS, J., concurs.

LANDIS, J., concurs in result.

JACKSON, J., dissents with opinion.

ACHOR, Chief Justice (concurring).

A question is presented as to whether appeal rather than the proceedings in mandate is relators' proper remedy. This issue is not discussed in the majority opinion.

The jurisdiction of this court to issue writs of mandate is governed by statute. Burns' Ind.Stat.Anno. § 3-2201 (1964 Cum.Supp.). It is an extraordinary remedy not to be used as a substitute for an appeal but only to be applied where the lower court fails to perform a duty enjoined on it by law. State ex rel. Hashfield v. Warrick Cir. Ct. (1961), 242 Ind. 318, 178 N.E.2d 734; State ex rel. Rans v. Fulton Cir. Ct. (1960), 240 Ind. 288, 164 N.E.2d 111; State ex rel. Botkin v. Delaware Cir. Ct. (1960), 240 Ind. 261, 162 N.E.2d 611, 93 A.R.L.2d 797. It will not lie to control the exercise of discretion by the trial court. State ex rel. Beatty v. Nichols (1954), 233 Ind. 432, 120 N.E.2d 407; State ex rel. Steers v. Hancock Cir. Ct. (1953), 232 Ind. 384, 112 N.E.2d 855.

On the other hand, mandate will issue to compel a court to act where there is a clear legal duty to act. Burns' Ind.Stat.Anno. § 3-2201, supra; see also: State ex rel. Steers v. Hancock Circuit Ct., supra.

In this case the relators are currently exercising the custodial care of the child whose custody was placed in issue. They had exercised that custodial care over several years with the consent or acquiescense of the divorced parents of the child. There was an open controversy as to the continued custody of the child which threatened its welfare. Any order with regard to the custody of the child while it was in the custodial care of the relators could not be conclusive as to relators' rights unless relators were made a party to the proceedings. Henderson v. Kleinman (1953), 231 Ind. 657, 109 N.E.2d 905; Bryan v. Lyon (1885), 104 Ind. 227, 3 N.E. 880. Therefore, in the present case, relators were necessary parties in any proceedings to modify the original order of custody and as necessary parties their right to intervence was absolute. See: Noblitt v. Metropolitan Plan Commission (1961), 131 Ind.App. 497, 172 N.E.2d 580.

The statute provides: '[W]hen a complete determination of the controversy can not be had without the presence of other parties, the court must cause them to be joined as proper parties.' Burns' Ind.Stat.Anno. § 2-222 (1946 Replacement) (Emphassis added).

Since, under the facts presented the relators are necessary parties, the court had no discretion in allowing them to intervene; rather their right to do so was absolute.

Furthermore, because of the long delay which normally occurs in the appellate process, an appeal on the issue presented would not have constituted an adequate remedy at law. The mental health of the child involved could only suffer as a result of such protracted litigation.

For the above reasons it is my opinion that the writ of mandate was a proper remedy.

JACKSON, Judge (dissenting).

I am unable to agree with the conclusions reached in the majority opinion and dissent thereto.

The matters in issue in this action are succinctly set forth in the relators' petition in paragraphs No. 1 through 12 inclusive, which in the interest of presenting a clear factual situation in the instant case, are set forth as follows:

'1. That the respondent, Jack Rogers, is the duly elected, qualified and acting Judge of the Johnson Superior Court, and on the 7th day of March 1963, he appeared and qualified to serve as Special Judge in a certain suit in the Bartholomew Circuit Court and assumed jurisdiction therein as such Special Judge.

'2. The suit in question involved a petition to modify a previous order of the Bartholomew Circuit Court concerning the possession and custody of a minor child, Carmen Yvonne Hooker. Said custody order previously made by the Bartholomew Circuit Court grew out of a divorce action between the respondents, Carl O. Hooker and Patricia Anne Hooker (Meek), which resulted in a decree of divorce being entered therein on the 6th day of June, 1955.

'3. Said petition for modification was filed by these relators on the 11th day of October, 1962, after they had been permitted and authorized by William M. Lienberger, Judge of the Bartholomew Circuit Court, to intervene in said cause.

'4. After these relators had been allowed to intervene and had filed their petition for modification relating to the custody of the child, said Judge of the Bartholomew Circuit Court issued a temporary restraining order against the said Carl O. Hooker restraining him from abducting or taking physical possession of said minor child. The said petition for modification and temporary restraining order were both set down for hearing on the 6th day of December, 1962.

'5. The Court ordered notice to be given to the said Carl O. Hooker and Patricia Ann Hooker (Meek) and said notice was given by personal service on each of said parties with additional service on the said Patricia Anne Hooker (Meek) by newspaper publication.

'6. The said Carl O. Hooker thereafter appeared by...