White v. White

• Decision Date: 04 March 1913
• Citation: 86 A. 353,77 N.H. 26
• Parties: WHITE v. WHITE (two cases).
• Court: New Hampshire Supreme Court

86 A. 353

77 N.H. 26

WHITE

v. WHITE (two cases).

Supreme Court of New Hampshire. Hillsborough.

March 4, 1913.

Exceptions from Superior Court, Hillsborough County; Pike, Judge.

Petition for habeas corpus by James H. White against Maybelle B. White, and libel for divorce by Maybelle B. White against James H. White. From an order of court committing the custody of their child to a convent, James H. White excepts. Exception overruled.

Petition, for a writ of habeas corpus, brought by the father against the mother to recover the custody of their minor child, now four years of age, and libel for divorce, brought by the mother against the father in November, 1911, in which proceeding a divorce was granted in January, 1912, but which was brought forward for a hearing upon the prayer for custody. The suits were tried together before a master, and the case was transferred from the September term, 1912, of the superior court by Pike, J.

The parties were married at Manchester on July 24, 1907, and lived together in this state until July 31, 1910. The daughter was born on August 23, 1908. After the separation the child was cared for by the mother for a time and later by the father; the mother providing the child some clothing and visiting her at times. In July, 1911, White went West; and in September of that year, having determined to remain permanently in the West, he caused the child to be sent to him in Ohio, where he was then living. Mrs. White did not know that the child was to be sent to him and did not consent to it. October 1, 1912, Mrs. White received a card from her husband upon which was written "J. H. White and wife." In November she went to Ohio and after some parleying was permitted to see the child. At a subsequent visit she took the child and brought her to New Hampshire, against the wish and consent of White and with the aid of others. Mrs. White acted in good faith in going for the child; her visit to Ohio at the time being almost wholly due to the act of her husband in sending the card hereinbefore referred to. White had not married, and the card was intended as a joke. November 23, 1912, White brought the petition for habeas corpus. The libel for divorce brought by Mrs. White in 1911 alleged adultery and contained a prayer for custody. Service was by publication. Counsel appeared for the libelee and objected to the prayer for custody, but withdrew his appearance upon that prayer being waived. The court made no order as to custody. At the hearing before the master, counsel for White objected to the libel for divorce being brought forward and appeared specially on this motion. White appeared and testified fully as to both suits. The conclusion of the court was that neither the father nor the mother, as they are situated, could exercise the care that the child required, and that it would not be conducive to the child's interest that custody be awarded to either of them. The court thereupon committed the custody, until further order, to Mt. St. Mary's Convent of Mercy, of Manchester. White excepted to the conclusion of the court and to the orders made, on the ground that the court had no jurisdiction of the question of custody.

Taggart, Burroughs & Wyman, of Manchester, for James H. White. David W. Perkins and George I. Haselton, both of Manchester, for Maybelle B. White.

BINGHAM, J. April 6, 1911, when chapter 104, Laws of 1911, became operative, the residence and domicile of the father, mother, and minor child were in this state. Since then the mother's residence and domicile have continued here. The decree of divorce includes a finding that her domicile was here at the time the divorce was granted and that it was not changed by the husband's previous acquisition of a domicile elsewhere. Foss v. Foss, 58 N. H. 283; Harteau v. Harteau, 14 Pick. (Mass.) 181, 186, 25 Am. Dec. 372; Haddock v. Haddock, 201 U. S. 562, 570, 571, 26 Sup. Ct. 525, 50 L. Ed. 867, 5 Ann. Cas. 1; Brown, Jur. 290. The father became domiciled in Ohio in September, 1911, and during the latter part of that month caused the child to be sent to him in Ohio, without the knowledge or consent of the mother. Having ascertained where the child was, and believing that the father had married again, the mother went to Ohio in November, 1912, obtained possession of the child, and, aided by others, brought her to New Hampshire without the consent of the father. In doing this she acted in good faith.

The father contends that upon these facts the courts of this state have no jurisdiction to inquire into and determine the question of the custody of the child, either by bringing forward the divorce proceeding or upon habeas corpus. He apparently concedes, and such is undoubtedly the law, that if the child's domicile is in this state the court would have jurisdiction to determine the question of custody and could enforce its decree; the child being within the state and amenable to its mandate. People v. Winston, 31 App. Div. 121, 52 N. Y. Supp. 814, 816, 817. It is also reasonably certain that the court would have jurisdiction to determine the question of custody if the child were domiciled within the state, but was subject to the control of the father and was being secreted by him without the state, the father being within the state and subject to the process of the court (People v. Winston, 25 Misc. Rep. 676, 56 N. Y. Supp. 323; People v. Asylum, 57 App. Div. 383, 68 N. Y. Supp 279, 280, 283; In re Jackson, 15 Mich. 417, 433, 440, 441; Regina v. Barnardo, 24 Q. B. Div. 263); and that the same would be true if the child were not legally domiciled within the state, but was actually in the state and her presence here had not been brought about by force for the purpose of conferring jurisdiction in pending or contemplated litigation (Hanrahan v. Sears, 72 N. H. 71, 72, 54 Atl. 702; Woodworth v. Spring, 4 Allen [Mass.] 321, 322, 320; In re Hubbard, 82 N. Y. 90, 95; Stuart v. Bute, 9 H. L, Cas. 440). The contention of the father therefore reduces itself to this: (1) That the child's domicile is in Ohio, where the father now resides, and nowhere else; and (2) that her presence in this state...