White v. White

• Decision Date: 31 May 1938
• Docket Number: 27049.
• Citation: 15 N.E.2d 86,214 Ind. 405
• Parties: WHITE v. WHITE.
• Court: Indiana Supreme Court

15 N.E.2d 86

214 Ind. 405

WHITE v. WHITE.

No. 27049.

Supreme Court of Indiana

May 31, 1938

Appeal from Putnam Circuit Court; C. C. Gillen, Judge.

Roy C. Sutherlin, W. M. Sutherlin, and Albert E. Williams, all of Greencastle, for appellant.

James & Allee, of Greencastle, for appellee.

TREMAIN Judge.

This action was commenced by the appellant in the Putnam Circuit Court of Putnam County, Indiana, on the 10th day of November 1937. She filed a verified petition, which was amended on November 26, 1937, in which she prayed for a writ of habeas corpus.

She alleged that she was the mother of James W. White, a minor child of appellant and appellee; that in November , 1936, the parties were residents of Wayne County in the State of Michigan; that, in the circuit court of that county, she was granted a divorce from the appellee and was given the custody of their said child; that the Wayne Circuit Court had jurisdiction of the parties and subject matter, and provided in the decree that the appellee should pay to her the sum of $8 per week for the support of her and the child; that such order should continue until the child was 17 years of age, or until further order of the court; that the appellee was given the privilege of visitation with his child and to have it visit with him at certain times.

The petition alleged that, in August, 1937, the appellee 'forcibly, wrongfully and without the knowledge or consent of this petitioner, or without the knowledge or consent or order of said court took possession of the body of said child and carried it to the house of Mr. B. F. White near Cloverdale,' in Putnam County, Indiana, and wrongfully restrained it and deprived the appellant of its custody, in violation of the order and decree of the Michigan court. A copy of the proceedings and decree of the Circuit Court of Wayne County, Michigan, was made part of the petition.

Upon the filing of the petition, a writ of habeas corpus was issued to the appellee commanding his appearance in court. Pursuant to the order, the appellee appeared and filed a verified return in which he admitted that he and the appellant were formerly husband and wife; that James W White, named in the petition, is their child, born on January 23, 1932; that the divorce decree was entered by the Circuit Court of Wayne County, Michigan, as alleged in the complaint; that, since the divorce was granted, the parties have lived apart, the appellant living in the City of Detroit in the State of Michigan and the appellee in Cloverdale Township, Putnam County, Indiana. The return alleged that the appellant does not have a suitable home in which to properly maintain and support their child, and because of that fact the appellant and appellee mutually agreed, in December, 1936, to modify the decree of the Circuit Court of Wayne County, Michigan, in the interest and welfare of their child, and that such child should be taken to the home of the appellant's sister in Springfield, Illinois, and should remain there as long as conditions were to the best interest of the child; that, pursuant to said mutual agreement, the child was removed from the jurisdiction of the Michigan court and placed in said home.

It is further alleged that, since the child was taken in the State of Illinois, the petitioner has become and is an unfit person to have the care and custody of the child; that she has no home in which to keep and maintain it; that she is employed, and if she had the care and possession of their child, it would be left to the care and charge of strangers; that, after the child was taken to Springfield, Illinois, the appellee visited it and learned that it was becoming estranged from him and was kept in a home where it was not receiving the proper care and training; that, upon learning the conditions and surroundings of the child, he removed it to the home of his father in Putnam County, Indiana, where the child is being well cared for, and is in the company of its father, grandfather, and grandmother, and is being supported and provided for under environments conducive to the child's health, interest, welfare, and happiness; that the appellant has no means with which to clothe, care for, and educate the child, and no home in which to keep it, except in a rented room where it would be left all day without the personal attention of either parent or relative; that, on account of conditions now existing, the welfare of the child requires that it remain with appellee and his parents; that his father and mother, with whom he lives and where he supports their child, have no other person residing with them; that they have a good home for the child conducive to its well-being. The return asked that the custody of the child be given to the appellee.

Upon the filing of said return, the appellant filed exceptions thereto, as follows: (1) That said return does not show a...