State ex rel. Wookey v. Elifritz
| Decision Date | 17 November 1916 |
| Docket Number | 18984 |
| Citation | 160 N.W. 113,100 Neb. 320 |
| Parties | STATE, EX REL. MAY WOOKEY, APPELLEE, v. OWNIE L. ELIFRITZ, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Lancaster county: WILLARD E STEWART, JUDGE. Reversed and dismissed.
Judgment reversed and cause dismissed.
Frederick Shepherd, for appellant.
Adams & Jeary, contra.
This is an appeal from a judgment of the district court for Lancaster county in a habeas corpus proceeding brought, on the relation of one May Wookey to obtain the custody of Valda and Oreta Elifritz, minor daughters of the relator and respondent, Ownie L. (sometimes called Joy) Elifritz.
The record discloses that the relator and respondent were divorced by a decree of the district court for Nuckolls county rendered on February 8, 1913, in which the relator herein was plaintiff and the respondent herein was the defendant. The decree gave the custody of the children to the father, and the district court retained control of them for further orders, in compliance with section 1578, Rev. St. 1913.
It appears that, after the expiration of six months from the date of the decree, respondent was married to a Miss Fairbanks, with whom he is living as a present wife; and the relator, about the same time, was married to one Wookey, with whom she was residing at the home of his father near Fairbury at the time when this cause was tried.
It also appears from the record that the foregoing decree of divorce remains in full force and effect, is unreversed and unmodified, and no appeal was taken therefrom. It is thus shown by this collateral proceeding that the trial court in effect partly set aside and held for naught the decree of the district court for Nuckolls county, and changed the custody of the children named in that decree from the father, who was without fault, to the custody of the relator, who was found by that decree to be unfit to have the care and custody of them.
It is contended by the respondent that this was reversible error; that the district court of one county should give full faith and credit to the decrees of the district courts of other counties until they are set aside in proper proceedings, and that such proceedings is not habeas corpus.
In Hoffman v. Hoffman, 15 Ohio St. 427, it was said: "Where a court of common pleas, on rendering a decree of divorce, further decree the 'custody, care, and control' of the minor children of the marriage to one of the parties, a probate court, while such decree remains in force, cannot, as between the parties to the decree, legally interfere with the custody so decreed, either by habeas corpus or letters of guardianship."
"Where, upon granting a divorce, the court, in its judgment, assigns the custody of the children to one of the parties, such disposition of the children will control, until the judgment making it is modified by the court, upon proper application, and cannot be disregarded in a subsequent proceeding by habeas corpus, to obtain possession of the children." Williams v. Williams, 13 Ind. 523. Sullivan v. Learned, 49 Ind. 252.
In Jennings v. Jennings, 56 Iowa 288, 9 N.W. 222, it is said: "Where the decree in an action for divorce awards the custody of a child to one parent, it cannot be transferred to the other in a collateral action, but only by a change in the decree, obtained by direct proceedings for that purpose."
In McNees v. McNees, 30 S.W. 207 (97 Ky. 152), it was held: "An action by a divorced wife against her former husband, to recover for the care of a child given into her custody by the order granting the divorce, should be brought in the court in which such order was made."
In Karren v. Karren, 25 Utah 87, 69 P. 465, it was held:
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