State v. Larson
| Decision Date | 12 January 1934 |
| Docket Number | No. 29811.,29811. |
| Citation | 252 N.W. 329,190 Minn. 489 |
| Parties | STATE ex rel. LARSON v. LARSON. |
| Court | Minnesota Supreme Court |
Appeal from District Court, St. Louis County; Bert Fesler, Judge.
Habeas corpus proceeding by the State, on the relation of Lois Larson, against Albert P. Larson. From an adverse decree, defendant appeals.
Order in accordance with opinion.
R. Vern Eckman, of Duluth, for appellant.
G. A. E. Finlayson, of Duluth, for respondent.
Plaintiff and defendant were married at Duluth, Minn., in 1928 and subsequently became domiciled in Iowa. There was born of the marriage one child, a girl who will be five years of age in January, 1934. On March 12, 1931, the parties were divorced by a decree of the Iowa court. As a part of the divorce proceedings, the Iowa court awarded the custody of this child alternately to each parent for six months of each year. The decree provided for a readjudication of the question of custody when the child should become five years of age. After the divorce decree was entered, the plaintiff mother returned to, and re-established her domicile in Duluth, Minn., where she since has continued to live. In accordance with the Iowa decree, the child thenceforth spent six months of each year in Iowa with the father and six months of each year in Minnesota with the mother. About September 12, 1933, and at the expiration of her third six-month period, the mother refused to surrender the child to the father. The child was then in Minnesota where the defendant father had come to take her back to Iowa. After some delay occasioned by a hearing on an order to show cause why plaintiff should not have permanent custody, the mother finally surrendered the child to the father. Before the father could remove the child to Iowa, however, plaintiff served on him a writ of habeas corpus challenging his right to the child's custody. At the hearing had pursuant to said writ, the lower court made an order awarding custody of the child to the plaintiff mother until further order. From such decree, this appeal is taken.
Defendant contends (1) that this court has no jurisdiction over this minor child and cannot make a decree affecting its custody; and (2) that, even if this court has such jurisdiction, the evidence does not show such a change of circumstances as would justify this court in disregarding the decree of the Iowa court. These contentions present the only two issues in the case.
1. The question of jurisdiction as here presented is a new one in this state. An examination of certain fundamental principles of conflict of laws is therefore necessary, bearing in mind always that here we are not dealing with substantive property rights but with the question of the domicile of a child and the jurisdiction of courts to deal with matters of custody, which jurisdiction depends upon a determination of the question of domicile. A proceeding to determine custody of a minor child partakes of the nature of an action in rem, the res being the child's status or his legal relationship to another. Except where necessary as a police measure (see Hartman v. Henry, 280 Mo. 478, 217 S. W. 987 — neglected child), it would seem that the only court which has power to fix, to change, or to alter this status is the court of the state in which the minor child is domiciled. Harris v. Harris, 115 N. C. 587, 20 S. E. 187, 44 Am. St. Rep. 471; Lanning v. Gregory, 100 Tex. 310, 315, 99 S. W. 542, 10 L. R. A. (N. S.) 690, 123 Am. St. Rep. 809; Kline v. Kline, 57 Iowa, 386, 10 N. W. 825, 42 Am. Rep. 47; Goodrich, Conflict of Laws, § 131, p. 305. The Minnesota court apparently has recognized this general rule in State ex rel. Aldridge v. Aldridge, 163 Minn. 435, 436, 437, 204 N. W. 324; see, also, State ex rel. Williams v. Juvenile Court, 163 Minn. 312, 314, 204 N. W. 21. An unemancipated minor, being incapable of choosing his own domicile, generally has the same domicile as his father. Beale, Domicil of an Infant, 8 Corn. L. Q. 103, 104; see State v. Streukens, 60 Minn. 325, 327, 62 N. W. 259. A wife's domicile generally is that of her husband. Kramer v. Lamb, 84 Minn. 468, 471, 87 N. W. 1024; see Parks, The Domicil of a Married Woman, 8 Minnesota Law Review 28. Where husband and wife are divorced or judicially separated, however, the wife thereafter may acquire a domicile separate from that of her husband. Bechtel v. Bechtel, 101 Minn. 511, 514, 112 N. W. 883, 12 L. R. A. (N. S.) 1100 (semble); see Putman, Conflict of Laws as to Domicil, 15 Minnesota Law Review 668, 678; American Law Institute, Restatement of Conflict of Laws. No. 1 (1925), § 31. In case of a divorce or separation, a minor child's domicile is that of the parent to whose custody it has been legally given. American Law Institute, Restatement of Conflict of Laws, No. 1, § 34. So, if in a divorce proceeding the custody of a minor is awarded to the mother who subsequently changes her domicile, the minor's domicile follows hers. Fox v. Hicks, 81 Minn. 197, 83 N. W. 538, 50 L. R. A. 663; Wilkinson v. Deming, 80 Ill. 342, 22 Am. Rep. 192; Toledo Traction Co. v. Cameron (C. C. A.) 137 F. 48.
Applying the above discussed principles to the case at bar, we conclude that the minor child was domiciled in Minnesota at the time of the commencement of this action. After the Iowa divorce, the mother changed her domicile to Minnesota. The minor's domicile is that of the parent to whose custody it has been awarded. So for each of the six months' periods that the mother had the custody, the minor's domicile was in Minnesota. When this action was commenced, the child had been in Minnesota for a few days over the six months' period, but had not been returned to Iowa. The domicile would not be re-established in Iowa until the minor had returned there.
Concluding therefore that the minor's domicile was in Minnesota at the time this proceeding was commenced, we come to the further question of whether under the full faith and credit clause of the Federal Constitution, article 4, § 1, we are bound to recognize and to enforce the Iowa decree and thereby to relegate the parties to the Iowa court for any relief they may desire. All parties were domiciled in Iowa at the time of the original decree awarding custody alternately to each parent. No one here challenges the well-settled rule that that decree is binding on the Minnesota court as to the right to the custody of the child at the time, and under the circumstances, of its rendition. For a collection of cases so holding see note in 20 A. L. R. 815. Defendant points out that admittedly the Iowa court had jurisdiction when it rendered the original decree and that such decree was conditional and provided for a readjudication of the question of custody when the child should become five years of age. From this he contends that the Iowa court's jurisdiction has not been lost by the fact that the parties removed themselves from the state, and therefore that since only one court can have jurisdiction in a matter of this kind, this court is without jurisdiction. While it is true generally that where jurisdiction by personal service once is acquired it is retained until a final determination of the issue and is not lost or defeated by the fact that the parties remove themselves from the state (Darrah v. Watson, 36 Iowa, 116, 119; Fitzsimmons v. Johnson, 90 Tenn. 416, 17 S. W. 100; see Michigan Trust Co. v. Ferry, 228 U. S. 346, 353, 33 S. Ct. 550, 57 L. Ed. 867), yet we cannot accede to defendant's contention for the reason that the res is here the minor's status and we believe jurisdiction over this status follows the domicile of the child. To hold otherwise would be to disregard the underlying consideration of the child's welfare which is a matter of paramount importance to the state and to society. In Griffin v. Griffin, 95 Or. 78, 187 P. 598, a divorce was granted in California where both parties were domiciled. The mother was awarded custody of the minor children, but was ordered not to remove them...
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