Weber v. Redding

• Decision Date: 23 October 1928
• Docket Number: No. 24920.,24920.
• Citation: 163 N.E. 269,200 Ind. 448
• Parties: WEBER v. REDDING et al.
• Court: Indiana Supreme Court

200 Ind. 448

163 N.E. 269

WEBER

v.REDDING et al.

No. 24920.

Supreme Court of Indiana.

Oct. 23, 1928.

Appeal from Wells Circuit Court; Wm. N. Ballou, Judge.

Action by Loraine Weber against Harry E. Redding and others for writ of habeas corpus. From the judgment, plaintiff appeals. Affirmed.

Claycombe & Stump, of Indianapolis, and Simmons, Dailey & Simmons, of Bluffton, for appellant.

Eichhorn, Gordon & Edris, of Bluffton, for appellees.

TRAVIS, J.

This is an action by appellant against appellees for a writ of habeas corpus, to obtain the possession of Robert Ellworth Redding, the son of the appellant and her former husband, Harry E. Redding, appellee.

The subject of this inquiry was born March 23, 1919, eight years after the marriage of his parents. Appellee Redding was granted a divorce from appellant April 14, 1922, by the court of common pleas, Franklin county, Ohio, upon substituted service of process by publication against his wife, defendant in the suit for divorce and appellant in this action. She was, before the bringing of the suit for divorce, a resident of and domiciled in Indiana. She did not appear to the suit for divorce, and was not within the state of Ohio from the beginning of the suit for divorce to the granting of the decree of divorce. All of this time she had the child with her in Indiana. At the time of the granting of the decree of divorce, the court decreed that the care, custody, and control of the son were to be divided between the father and mother. At the time of the beginning of this action, the father had the custody and control of the child, but had placed him in the possession of appellee Ada Gordon, who was the sister of appellee Redding, and her husband, appellee Robert Gordon. Appellees, having such possession, control, and custody of the child, refused to permit appellant to again take the absolute custody, control, and possession of him, but offered to permit her to see her son at the home of appellees the Gordons at all reasonable times. The Gordons owned and lived upon a farm of 120 acres in Wells county: They were respectable people and bore a good reputation. They had all the conveniences of life necessary to give the child, their nephew, every advantage, including education, necessary for his proper rearing. They had no child of their own. Appellee Redding was, and is, a resident of Columbus, Ohio. Appellant married 10 days after she was divorced by her husband. She and her second husband reside in Indianapolis, and for aught shown by the evidence, she and her husband each bear a good reputation and have a modern home. Appellant is also the mother of a son, the result of her second marriage.

The pleadings in the cause consist of the petition by appellant, the separate return of appellee Redding, and the joint return of Robert and Ada Gordon, appellees. Appellant filed exceptions to the return of appellee Redding, and to the joint return of appellees Gordon and Gordon. Appellant's petition for the writ alleges the birth of the child and his relationship to her and the appellees; the granting to appellee Redding of the divorce from appellant; the custody of the child in the appellees; the conspiring and confederating together of the appellees to retain the custody and possession of the child, and refusal to permit appellant thereafter to gain the custody and possession of him; the marriage of appellee Redding since the divorce, and his residence in Columbus, Ohio; Redding's voluntary relinquishment of the custody and care of the child to appellees Mr. and Mrs. Gordon; the fitness of the appellant to have the custody of the child; and her willingness and means to amply provide and care for him.

Appellees, by their returns to the petition, admit all allegations of the petition, except appellant's fitness to have the care, custody, and control of the child, and the custody of the child by appellees Robert and Ada Gordon; and allege the child was placed in the care and custody of the Gordons by appellee Redding, with instructions not to give possession and custody of the child to the appellant, but to permit her to visit the child at the home of the Gordons; and allege, in support of the refusal by Redding to permit appellant to again have the child, that the appellant is wholly unfit morally to have the care and custody of the child, and that the decree of the Ohio court, in relation to the custody of the child, is invalid and void for the reason that that court did not have jurisdiction of either the appellant or the child. The return by appellee Redding also alleges that, before beginning this action for habeas corpus, appellant on October 2, 1922, filed her petition in the Wells circuit court praying a writ of habeas corpus and custody of the child now before the court, based upon the decree of custody by the Ohio court with the decree of divorce of the appellee Redding from appellant. In the former case appellees here were defendants; they filed returns to the petition alleging that they were not bound by the Ohio court's decree of custody of this child, because the court did not have jurisdiction of the child, for the reason that the mother and child were residents of Indiana, and process was had on the appellant in the divorce action only by substituted service, and that neither she nor the child was before the court when the decree was rendered, but they were in Indiana, and that she did not appear to the action for divorce, and that thereby the decree for custody is void. The cause was submitted to the court for trial, evidence was heard, and the court found for the defendants and against the petitioner, and adjudged that the defendant Redding have the care and custody of the child, and for costs. This judgment has not been vacated or set aside; from it no appeal was taken. After the divorce was granted to appellee Redding, appellant voluntarily relinquished the custody of the child to appellee Redding, in June, 1922. To the returns appellant filed her exceptions, which allege that appellees are estopped to deny the validity of the decree for divorce. She does not allege in her exceptions to the returns that appellees are estopped by the decree which awards the custody of the child. The allegation of estoppel to deny the validity for the decree for divorce will not support error predicated upon estoppel by decree which awards custody of the child. The exceptions allege as corollary to the first allegation which concerns the divorce decree only, that the allegations of the returns by appellees concerning the improper and immoral conduct of the petitioner (appellant) are too remote, according to assertions in oral argument, because the actions complained of were performed prior to the date of the decree of divorce. The first allegation which concerns only the decree of divorce cannot be a foundation for the second allegation, therefore the corollary fails, and no question is presented by the ruling on the exceptions.

The trial court overruled the exceptions to each of the returns of appellees. Appellant then filed an answer in general denial to each of the returns, and the issue created by the...