State v. Hedberg

• Decision Date: 29 June 1934
• Docket Number: No. 29665.,No. 29664.,29664.,29665.
• Citation: State v. Hedberg, 256 N.W. 91, 192 Minn. 193 (Minn. 1934)
• Parties: STATE ex rel. CARLSON et al. v. HEDBERG et al. (two cases).
• Court: Minnesota Supreme Court

256 N.W. 91

192 Minn. 193

STATE ex rel. CARLSON et al. v. HEDBERG et al. (two cases).

No. 29664.

No. 29665.

Supreme Court of Minnesota.

June 29, 1934.

Appeal from District Court, Hennepin County; Lars O. Rue, Judge; W. W. Bardwell, Referee.

Habeas corpus proceedings by the State, on the relation of Alice Carlson and another, as guardians of Lucille Carlson, and as guardians of Donald Carlson, against John W. Hedberg and others and against Oscar E. Hedberg and another. From an adverse order, John W. Hedberg and others appeal.

Affirmed.

G. H. Snyder and Marshall S. Snyder, both of Minneapolis, for appellants.

Walter T. Ryan, of St. Paul, and W. G. Haddow, of Ellsworth, Wis., for respondents.

JULIUS J. OLSON, Justice.

Habeas corpus (two cases tried together in the court below and similarly submitted here) to determine the custody of Lucille Carlson, born April 3, 1924, and her brother Donald Carlson, born September 9, 1925.

Both children are orphans. Their mother died May 18, 1931, and their father January 4, 1932. Both parents were residents of and domiciled within the state of Wisconsin and died while there so domiciled. In addition to the two children mentioned above, they also left surviving them a son Lewverne and a daughter Leona, both younger than the two whose custody is here involved.

On January 12, 1932, Judge W. C. Richardson of the county court of Pepin county, Wis., duly appointed relators, Alice Carlson and Ethel Nelson general guardians of the persons and estates of all of said minors. These women are the paternal aunts of these children. In the letters of guardianship they were given "the care, custody and education" of all of said children, including "the care and management of their estate until they shall have arrived at the age of twenty-one years." There is no other guardian of either person or estate of any of the children, but petitions are pending in this state by John Hedberg and his wife and Oscar E. Hedberg and his wife to have themselves appointed guardians here of Lucille and Donald. They have also petitioned to adopt these children as their own. That matter too is pending and undetermined.

In August, 1931, Vern F. Carlson, the father of these children, being ill and out of work, his wife having died, left with Oscar E. Hedberg and Clara Hedberg, his wife, the girl, Lucille. He told them that he was not feeling a bit well, had neither money nor a job, and that he was afraid they would have to keep Lucille a long time. The Hedbergs promised they would gladly do so.

In February, 1932, John W. Hedberg and Violet Hedberg, his wife, obtained the custody of the boy, Donald, who was at that time living with a Mrs. Johnson, his aunt, at Superior, Wis. The children have been with the Hedbergs ever since except for a visit of about seven weeks during the summer of 1932, when they were with their Wisconsin relatives. When the guardians asked for the custody of the two children, the Hedbergs refused. Since then various petitions and other proceedings have been brought into play having for their object the solution of the problem of the custody. As we view the situation, however, no further comment need be made in respect thereof.

On May 23, 1933, the district court of Hennepin county (the Hon. Lars O. Rue, judge presiding) made an order, upon application of the guardians, directing the Hedbergs to return the custody of the children Lucille and Donald to them. An appeal was taken to this court from that order on June 16, 1933. On July 18, 1933, this court issued an order appointing District Judge W. W. Bardwell of Minneapolis as referee to take the testimony in these cases and to certify the same to this court.

Pursuant thereto Judge Bardwell heard the evidence on October 10, 11, 12, 1933. The testimony taken was later transcribed and transmitted to this court on February 16, 1934. Counsel have provided us with elaborate briefs, and we have also had the benefit of exhaustive oral arguments.

The record is in typewritten form, as also are the briefs of counsel. The whole matter is rather voluminous; the record containing 285 pages of typewritten matter and a number of typewritten exhibits. But counsel have very diligently assisted us in our review by appropriate indexes and quotations. These with the briefs submitted have been found very helpful.

There are three questions discussed by counsel, as follows: (1) Whether this court has jurisdiction to award the custody of these children to the Hedbergs; (2) whether there is anything in this record justifying this court, assuming that it has jurisdiction, to disregard or make for naught the appointment of relators as guardians of the persons and estates of these children in the state of Wisconsin; and (3) assuming this court has jurisdiction, whether the evidence is such as to justify this court in holding that it is for the best interests of these children that their custody be awarded to the Hedbergs.

1. The question of jurisdiction is always, when involved, of vital and determinative importance. The proceeding here partakes of the nature of an action in rem; the res being the child's status or his legal relationship to another. We are not dealing with substantive property rights, but rather and only with the question of the domicile of these children. After all domicile is determinative of whether or not we have jurisdiction to proceed. Restatement, Conflict of Laws, c. 2, § 10, defines domicile as follows: "Domicil is the place with which a person has a settled connection for legal purposes; either because his home is there or because it is assigned to him by the law."

There can be no quarrel with the accuracy of this definition. Nor can there be any doubt but that the parents of these children were domiciled in the state of Wisconsin at all times during their married life and up to the moment of death. They had no other domicile, home, or place of abode.

Section 37 of the same restatement has this to say "Upon the death of the father, the domicil which a minor child has at the time of the father's death continues to be its domicil during minority, unless its domicil is changed according to the principles stated in sections 38, 39 and 40."

Section 38 relates to a change of a child's domicile by a person acting as the child's guardian. Section 39 is to the effect that "if the father dies and no guardian of the child's person is appointed, the child has the same domicil as that of its mother." Here that particular section is ineffective because the mother predeceased the father. Section 40 provides: "If both parents of a minor child are dead and no guardian of the child's person is appointed, a grandparent who takes the child to his home to live becomes its natural guardian, and the domicil of the child is that of the grandparent so long as the child continues to live with him." And this significant comment follows: "No other relative than the mother or one of the grandparents can be a natural guardian of the child."

This section is not applicable for the reason that in the instant case it is conceded that respondents were duly appointed guardians of the persons and estates of these children only a few days after their father's death.

The record...