Pukas v. Pukas

*766 Kenna, Judge : This habeas corpus proceeding was brought in the Circuit Court of Preston County by Margaret Pukas against Maxine M. Pukas and David F. Chidister for thpurpose of recovering from the respondents the custody of three year old Laura Pukas, the child of Maxine M. Pukas by John W. Pukas, her husband at that time and the son of relator. From an order quashing the return of the respondent and awarding the control and custody of Laura Pukas to Margaret Pukas, her paternal grandmother, this Court granted an appeal and supersedeas. No proof was taken in the Circuit Court and its order apparently is based upon the undenied averments of the relator’s verified petition. The petition is not signed by the relator nor by counsel although the supporting affidavit that immediately follows its conclusion is properly executed by the relator and verifies .the petition’s contents without qualification. Since the absence of the formal signing of the petition, as distinguished from its required verification, is an ommission which could have been quite easily corrected in the Circuit Court, and since the respondents appeared and filed their answer to the petition without raising the question, we are of the opinion that on appeal in this respect the petition should be regarded as sufficient. The petition alleges that in January, 1946, John W. Pukas was awarded a divorce from Maxine M. Pukas, and that Laura Pukas, aged three, of whom they were the parents, was committed to the custody of her father; that on February 13, 1946, Maxine M. Pukas brought “custody proceedings” in the Municipal Court of Philadelphia where all parties concerned were located, and that in that proceeding she agreed in open court with the father, then in the service of the United States Army, that the best interests of the child required that her custody be awarded to petitioner and that the court decreed accordingly; that on March 27, 1946, after the father had left this country, Maxine M. Pukas filed a petition to reopen the custody proceeding, and that, the *767 Municipal Court of Philadelphia not then nor since then having acted upon the petition, the legal custody remained with petitioner, and petitioner kept the child until Sunday, April 14, 1946, when Maxine M. Pukas called at petitioner’s home at ten o’clock in the morning and took the child for a walk, not returning her to petitioner’s home but, without informing petitioner, took the child from Philadelphia to Preston County, West Virginia, where the child is now being illegally kept and detained by Maxine M. Pukas and by David F. Chidister, her father and the maternal grandfather of the child; that the detention of the child in Preston County by Maxine M. Pukas and David F. Chidister is in violation of the decree of the Municipal Court of Philadelphia and constitutes a contempt of its authority, and that petitioner is amply able, physically, financially and morally, to care properly for the child .and that the child’s best interests will be favored and conserved if a writ of habeas corpus is awarded petitioner. There appear in this record duly authenticated copies of the orders of the Second Judicial District Court of Nevada in the divorce proceeding of John W. Pukas against Maxine M. Pukas, as well as a transcript of the testimony, also authenticated, in that proceeding. There also appears a copy of the record in the proceeding before the Municipal Court of the City of Philadelphia, duly authenticated. These papers are included in the record by the certificate of the Circuit Clerk of Preston County, stating that they were filed as exhibits with the petition on June 10, 1946. Otherwise they are not identified nor made a part of the record. It seems to be apparent, however, that they were considered by the trial judge, and since respondent’s return attempts a collateral attack upon both the proceedings and raises no question concerning the consideration of the record of either, we are disposed to consider them here, although that course does not constitute an approval of a decidedly irregular practice of considering as exhibits papers not referred, to nor identified by the pleadings. *768 The allegation of the petition to the effect that the Philadelphia Court awarded the custody of the child to' the petitioner is in error. It did award custody to John W. Pukas with the understanding, shown by the transcript, that he was then in the armed service of the United States ordered overseas and that the child would be left by him in the actual care of his mother, Margaret Pukas, the petitioner. To this Maxine M. Pukas agreed. Speaking strictly, the writ of habeas corpus involves only the question of ’whether the detention of the body of an individual is lawful or unlawful and the writ, if made permanent, simply restores freedom to the individual whose restraint is involved. It does not award-custody to another. The petitioner need not be the person whose restraint is involved but merely some person who has a legally justified interest in his freedom, such as father, son, brother or aunt, who is not seeking to establish a superior right to custody, but simply to end one that is unlawful. The return or answer may, but need not, traverse the allegations of the petition, but it must show a lawful right to the possession of the subject’s person. The matter is usually based upon the sufficiency of the return and the evidence introduced to sustain it, If the confinement is unlawful, the allegations of the petition become inconsequential. See 25 Am. Jur. 234. However, the procedure is different where the custody of an infant is concerned. Habeas corpus then becomes like unto a chancery proceeding in rem, with the child as the res. 25 Am. Jur. 202. The welfare of the child is the outstandingly paramount question and the proceeding is addressed to the sound discretion of the court, the exercise of which will not be reversed unless plainly abused. Frame v. Wehn, 120 W. Va. 208, 212, 197 S. E. 524. The court is not bound by any particular rule to deliver to any particular claimant the custody involved, the law recognizing no absolute right to the child’s custody, although by statute in West Virginia a husband *769 and wife while living together are accorded their child’s joint custody. “But the court is in no case bound to deliver the child into the custody of any claimant, but may leave it in such custody as the welfare of the child at the time appears to require.” Green v. Campbell, 35 W. Va. 698, Pt. 4, Syl., 14 S. E. 212. To the same effect is the holding of this Court in Stapler v. Leamons, 101 W. Va. 235, 132 S. E. 507, citing the Green case at page 241. The latter case also deals with a foreign decree and states the recognized rule that the order of a court of record, foreign or domestic, awarding custody, is not binding if, since its date, the circumstances have undergone a considerable change. Here we believe they have not. As approving the holding in the Green case see also Frame v. Wehn, 120 W. Va. 208, 197 S. E. 524. Since habeas corpus proceedings involving the contested custody of infants are closely related to chancery proceedings in which issues are developed by the pleadings, due to the fact that they are not simply an attack upon an unlawful detention, but are controversies between rival claimants to the care and custody of an infant, this case turns largely, in our opinion, upon whether the Circuit Judge erred in quashing the return of the respondent and entering an order awarding the custody of Laura Pukas to the petitioner, Margaret Pukas, based upon the allegations of the petition accompanied by a record of the divorce proceedings in Nevada and a record of the custody proceedings in the City of Philadelphia, both of which contain orders awarding the custody of Laura Pukas to her father, John W. Pukas. We have carefully examined the return and find that it contains no specific denial of the material allegations of the petition. In our opinion it sets up no defense except the general denial that the custody of Laura Pukas exercised by Margaret Pukas would be legal. Its principal purpose seems to be to attack collaterally the decree in the divorce proceedings in Nevada and the order in *770 the custody proceeding in Philadelphia. We do not believe that the allegations are sufficient to show either to be void. Full faith and credit must be given to the judgment of courts of record of other states, and the only way that they are subject to attack in a different state is by a showing that they are void. Perkins v. Hall, 123 W. Va. 707, 17 S. E. 2d 795. The allegations of the return could .not possibly have this effect. It does contain allegations on information and belief to the effect that Margaret Pukas is engaged in an employment that would prevent her giving attention to the care of Laura Pukas and a number of factual conclusions as to the care Maxine M. Pukas could bestow at the home of her father, David F. Chidister, where she lives, being employed in Kingwood, to and from which she commutes daily, leaving the child in the care of her mother, Elma Chid-ister. Of course these latter allegations could not possibly affect the divorce decree nor the order of the Philadelphia Municipal Court, as they do not expressly allege a change in circumstance since the entry of either that would alter the sound discretion of a trial chancellor or judge. To the contrary, in so far as changed circumstances are concerned, the respondent’s return could have the opposite effect because in it appears this statement: “* * * by reason of the fact that she was advised that the said John W. Pukas was again going over seas in military service of the United States Government she felt that she would have a much better opportunity of securing the custody of said infant child at a later date * * That averment refers to the Philadelphia proceedings and is intended to excuse respondent’s consent to the actual custody being allowed petitioner while her son was overseas in active service. When that course of conduct is considered in connection with the fact that ..Maxine Pukas admits that she took the child from Philadelphia to Preston County without afterward informing the child’s grandmother in whose care it then was, the Circuit Court doubtless considered those occurrences as at least additional information disclosed since the *771 Philadelphia hearing and reason to question the training the child would receive in her care. For the foregoing reasons the judgment of the Circuit Court of Preston County is affirmed. Affirmed.