Turley v. Turley, 52301

Decision Date22 December 1981
Docket NumberNo. 52301,52301
Citation1981 OK 161,638 P.2d 469
PartiesVictoria G. TURLEY, Appellee, v. Willard E. TURLEY, Appellant. Dorsey G. Gray, Intervenor.
CourtOklahoma Supreme Court

Appeal from the District Court, Tulsa County; Patricia M. Hoebel, judge.

Appeal by father of children from order modifying child custody provisions of divorce decree by awarding children to their paternal grandfather, in a divorce case which had been concluded by the death of the divorced mother.


Gable, Gotwals, Rubin, Fox, Johnson & Baker by Arthur E. Rubin, Tulsa, for appellee and intervenor.

Lassiter & Lassiter by Phillip L. Lassiter, Tulsa, for appellant.

SIMMS, Justice:

This appeal arises from an order of the trial court in a concluded divorce case awarding custody of minor children to their maternal grandfather subsequent to the death of their mother, to whom custody was granted in the divorce proceeding.

The grandfather had obtained a temporary order giving him custody in conjunction with his motion to modify filed in his deceased daughter's divorce action asking the court to grant him permanent custody. The father filed a petition seeking writ of habeas corpus. The motion to modify and the father's habeas corpus were consolidated for hearing. At the beginning of the second day of testimony the father unilaterally, and without leave of court, dismissed his habeas corpus action. The father now complains the trial court was without jurisdiction to award custody of the children to the grandparent in the concluded divorce case.

The Court of Appeals affirmed the order of the trial court. We Grant Certiorari, Vacate the opinion of the Court of Appeals, and Remand to the trial court with Directions to reinstate the habeas corpus proceedings and award custody of the minor children to the maternal grandfather in the habeas corpus proceeding.

In Ingles v. Hodges, Okl., 562 P.2d 845 (1977), this Court held:

"Upon the death of the parent into whose custody children are placed by a decree of divorce, the children stand, with relation to the surviving parent and all the world, as if no decree of divorce had been entered."

The rationale behind this rule is that when a divorce decree gives custody of children to one parent, as opposed to the other, it is effective only as between the parties to the divorce, and upon the death of one, the right of custody inures automatically to the surviving parent. This position states the majority view 1 and we know of no reason to recede therefrom.

This general rule, however, is qualified in Ingles and cases therein cited, in that a showing of unfitness on the part of the surviving, divorced, non-custodial parent is sufficient to defeat habeas corpus proceedings brought by the surviving parent to obtain custody of the children from their grandparents.

In the case at bar, the trial court proceeded to hear evidence both in support of the father's habeas corpus proceeding as well as the grandfather's motion to modify. The children were present. The trial court had jurisdiction over the parties, the children, and the general subject matter. The dismissal of the habeas corpus proceedings without leave of court, after the evidentiary hearing had commenced did not defeat the jurisdiction of the trial court to enter an order for the protection of the minor children.

We do not deviate from the common law and statutory right 2 of a complaintant to control his cause by dismissal at his pleasure on payment of costs. However, we recognize an exception to this rule which is applicable to habeas corpus proceedings to determine...

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8 cases
  • In re Oklahoma Capitol Imp. Authority
    • United States
    • Oklahoma Supreme Court
    • December 13, 2005
  • SW v. Duncan
    • United States
    • Oklahoma Supreme Court
    • May 8, 2001
    ...of a custodial parent the non-custodial parent is immediately vested with legal custody of their children. He relies upon Turley v. Turley, 1981 OK 161, 638 P.2d 469, where we said the In Ingles v. Hodges, Okl., 562 P.2d 845 (1977), this Court held: "Upon the death of the parent into whose ......
  • Ward v. Ward
    • United States
    • Kansas Supreme Court
    • September 14, 2001
    ...to the surviving parent subject to the condition that he or she is a fit and suitable person to have custody." Further, Turley v. Turley, 638 P.2d 469, 470 (Okla. 1981), was relied on for the Oklahoma rule that "[u]pon the death of the parent into whose custody children are placed by a decr......
  • Nealis v. Knecht
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • May 9, 1995
    ...the common law and statutory right to dismiss their claim for negligent treatment of Mrs. Nealis. 12 O.S.1991 § 684; see Turley v. Turley, 638 P.2d 469, 471 (Okla.1981); Goins v. Fox, 332 P.2d 220, 221 (Okla.1958); Shinn v. Morris, 205 Okla. 289, 237 P.2d 455, 456 (1951). With that pleading......
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