Sweeney v. Joneson, 9391

• Decision Date: 16 February 1954
• Docket Number: No. 9391,9391
• Citation: 75 S.D. 213,63 N.W.2d 249
• Parties: SWEENEY v. JONESON et al.
• Court: South Dakota Supreme Court

Page 249

63 N.W.2d 249

75 S.D. 213

SWEENEY v. JONESON et al.

No. 9391.

Supreme Court of South Dakota.

Feb. 16, 1954.

Rehearing Denied March 17, 1954.

John P. McQuillen, Sioux Falls, for plaintiff and respondent.

Danforth & Danforth, Sioux Falls, for defendants and appellants.

ROBERTS, Judge.

This proceeding in habeas corpus was commenced on May 8, 1953, in the circuit court of Minnehaha County by Marge B. Sweeney, a resident of Los Angeles, California, to obtain from the defendants the custody of her son then six years of age. The father of the child was Charles Joneson, who died March 4, 1953, in Parsons, Kansas. January 19, 1951, he had obtained in the district court of Alfalfa County, Oklahoma, a decree of divorce from the plaintiff on the ground of abandonment. The care, custody and control of the child was awarded to the father. There was no finding that the mother was an unfit person to have custody. The defendant, Oscar Algot Joneson, was a brother of Charles. He and his wife in their return to the writ seek continued custody challenging the fitness of the mother and claiming that the best interests of the child demand that defendants be not deprived of custody. The trial court found from the voluminous evidence submitted that plaintiff is a fit person to be custodian and is able and willing to provide the boy with a suitable and proper home. Judgment was entered accordingly and defendants appealed.

The parties were married in November, 1943, and on May 30, 1947, their son James Russell was born. The husband immediately prior to the marriage had been in the military service nearly four years and because of a head injury was given a medical discharge. The injury resulted in an ailment known as Jacksonian epilepsy. Following birth of the child, the parties resided in a trailer house in Minneapolis while the father attended the University of Minnesota. After their separation in September, 1949, the child was cared for by the father's sister until some time in December of that year and except for short intervals has since that time lived in the home of the father's brother, Oscar Algot Joneson. Plaintiff maintained a contact with her child through correspondence with the father. When notified of the death of the father, plaintiff immediately communicated with relatives in Erie, Kansas, who had custody of the child. She having received from an attorney a letter purportedly written at the behest of the defendants and stating that they would give her custody of the child on March 17th arrived in Erie on that day and learned that defendants had disappeared with the child. On May 6th following, plaintiff ascertained through the Kansas Bureau of Investigation that defendants were living in Minnehaha County. This proceeding immediately followed.

Defendants seek reversal on the grounds, first, that plaintiff is bound by the Oklahoma decree awarding custody to the father and prohibiting her from interfering in any way with the custody and, second, that the natural right of the parent to custody should not prevail when it appears as it does from the evidence in this case that the best interests and welfare of the child require that defendants have care, control and custody of the child.

The force of the statutory provision that upon the death of either the father or mother of a minor child the survivor is entitled to its custody, SDC 14.0303, was not affected by the divorce decree. On the death of a parent who held under a divorce decree custody of a child, the decree with respect thereto ceases to have any continuing effect, at least when, as here, it makes no provision for its continuance beyond the lives of the parties and there is no finding that the surviving parent is unfit to have custody. See Annotations in 74 A.L.R. 1352 and 128 A.L.R. 989...