Whittier v. McFarland
| Decision Date | 04 December 1906 |
| Citation | 79 Vt. 365,65 A. 81 |
| Court | Vermont Supreme Court |
| Parties | WHITTIER v. McFARLAND. |
Exceptions from Lamoille County Court; George M. Powers, Judge.
Petition by Lamora Whittier against F. H. McFarland for the custody of the minor child of the parties. A demurrer to a plea to the petition was sustained, and petitionee brings exceptions. Affirmed.
Argued before ROWELL, C. J., and TYLER, MUNSON, WATSON, HASELTON, and MILES, JJ.
Clarence H. Senter, for petitionee. J. W. Redmond, for respondent
The petition alleges, among other things, that the petitionee and the petitioner were formerly husband and wife; that as the fruit of this union Blanche McFarland was born unto them and is now 15 years of age; that a bill of divorce was granted to the petitionee by the county court within and for the county of Lamoille, and the custody of the minor child was given to the petitionee; but that the child always lived with and was supported by the petitioner until the 21st day of March, 1905, when a writ of habeas corpus was issued, and upon hearing the custody was given to the petitionee. These allegations are not denied by the plea in abatement; hence they stand admitted. The plea sets forth, in substance, that habeas corpus proceedings were brought before a judge of the Supreme Court to determine the same questions involved in this case, a hearing had, and a judgment rendered therein, and that by said judgment those proceedings are still pending before said judge, with full and complete jurisdiction in the premises, etc.
This plea was properly adjudged insufficient on demurrer. The court by which the divorce was granted, at the time of granting it, had the power to make such order or decree concerning the care, custody, and maintenance of the minor child as the circumstances required, and by statute it retained jurisdiction of this subject-matter and could at any time thereafter, on petition of either party, annul, vary, or modify the order so made, or make such other or further decree respecting the care, custody, and maintenance of the child as it might deem expedient, V. S. 2698. A petition for this purpose, even though it be not in terms so made, will be treated as a further proceeding in the case in which the divorce was granted, and that cause should be brought forward on the docket. Andrew v. Andrew, 62 Vt. 495, 20 Atl. 817. Since the county court for Lamoille county had and retained jurisdiction of the subject-matter for such...
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Leonard v. Willcox, 179.
...thus standing upon the docket was continued generally at the June term. The petition was properly entered as a part of it (Whittier v. McFarland, 79 Vt. 365, 65 A. 81), and was governed by the entry of continuance. No final disposition had been made of it, because of the failure of the judg......
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Mabel C. Leonard v. Superior Judge Julius A. Willcox
...... standing upon the docket was continued generally at the June. Term. The petition was properly entered as a part of it (. Whittier v. McFarland , 79 Vt. 365, 65 A. 81), and so was governed by the entry of continuance. No. final disposition had been made of it, because of the ......
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State v. Edward Van Ness
...to exercise his jurisdiction did not bar the proceedings in the county court. The opinion was given by Judge Munson, who sat in Whittier v. McFarland, decided about two years before. While the rule herein discussed was not referred to in the opinion of the Stanley case, we cannot believe th......
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State v. Van Ness, III.
...but does not consider it one that is to be given unyielding effect in all cases. The rule was approved and applied in Whittler v. McFarland, 79 Vt. 365, 369, 65 A. 81, but only to the extent above stated. That was a petition for the custody of a minor child between the divorced parents. It ......