State ex rel. Nipp v. District Court

MR. CHIEF JUSTICE BRANTLY delivered the opinion of the court. The purpose of this application is to have this court, by the exercise of its supervisory power, vacate and set aside an order of the district court of Fergus county, made upon an application for habeas corpus, awarding to Mary Nipp the custody of her minor son, Freddie Nipp. Mary Nipp and Ludwig Nipp, the relator herein, were married at Bennington, Douglas county, Nebraska, on June 25, 1902. They lived together as husband and wife, near Omaha in that state, until April 8, 1911. There were born to them a son, Freddie, and a daughter, Emilie, the former being now of the age of nine years.- During the early part of the year 1911, Mary Nipp brought her action in the district court of Douglas county, Nebraska, to have the marriage dissolved. The relator, having been personally served with summons, appeared and made defense. The result was that on April 8, 1911, the court found in favor of the plaintiff and rendered its decree dissolving the marriage. It was therein directed that until further order, the father should have the custody of the son, and the mother that of the daughter. The custody was not to be exclusive in either case, however, each party being accorded the right to visit at all times the child awarded to the custody of the other, and each being enjoined from interposing “any obstacle or hindrance in the way of the other.” On May 15, 1911, the relator removed from Nebraska — 432 — to Fergus county, Montana, where he has since resided. He brought with him the son, who has since remained with him. On November 3, 1911, Mary Nipp filed in the district court of Douglas county, Nebraska, a petition reciting the decree of April 8, 1911, and alleging that in contempt of the express order of the court and in violation thereof, the relator had concealed from her both of said minor children and had removed them to Fergus county, Montana, where he was keeping them on a ranch in charge of his niece, Minnie Hagedorn, without any intention of returning them or either of them to the state of Nebraska. The petition prayed that the decree be so modified as to award to plaintiff the custody of both children. The relator filed his answer resisting the petition on the ground that, since the domicile of the relator had been changed to Montana, and hence that of the minor, Freddie, the court was without jurisdiction of the subject matter of the proceeding, viz., the custody of said minor, and that Mary Nipp, the plaintiff, was not a fit and proper person to have such custody, for the reason that she was addicted to the excessive use of morphine and other drugs. The court, after a hearing, modified the decree in accordance with the prayer of the petition and awarded the custody of both children to the plaintiff, with the proviso, however, that the relator might visit them alone at reasonable times at the home of plaintiff or at a place designated by her, but only in the presence of a representative of the plaintiff who should be able to protect the children and plaintiff’s rights. There is in the record no statement as to what was thereafter done with the daughter, Emilie. Since her custody is not now in question, it may be assumed that after the decree was modified she was returned to Nebraska to her mother and is now in her custody. The habeas corpus proceeding was instituted in the district court of Fergus county on August 12, 1912. The petition recited somewhat meagerly the proceedings had in the Nebraska court resulting in the modified decree. It alleged that the son had been removed from the state of Nebraska by the relator, in violation of the decree as modified, and prayed that he be awarded to the custody of petitioner under the modified decree. The.relator — 433 — moved the court to set aside the writ for insufficiency of facts alleged in the petition, and also demurred to the petition on the same ground. The motion and demurrer were overruled. He then made his return. He admitted that the proceedings set forth above had been had in the Nebraska court and that he had removed the son to Montana soon after the decree of divorce had been rendered. He then alleged generally, by way of conclusion, that the petitioner is not a fit person to have the custody of the son because she is addicted to the excessive use of morphine and is without means to provide a suitable home for him, whereas he himself is able to furnish him the care and attention which his age and condition require. The court, on motion of counsel for petitioner, struck out these allegations. Thereafter it sustained a demurrer to the return and made the order awarding the custody to petitioner. The questions presented for decision arise upon a motion submitted by counsel for respondents, asking that the order to show cause be set aside and the proceedings dismissed, on the general ground that the facts stated in the petition do not warrant the relief demanded. We shall notice them as they are discussed in the brief of counsel for relator. It is earnestly argued that when an infant is brought into [1] court in obedience to a writ of habeas corpus, it is thenceforward in the custody of the court, subject to its disposition; that the power of disposition rests upon the broad foundation of the general jurisdiction of courts over infants, and that it is not limited by any previous order of any court as to the custody; and that the court, in striking from relator’s return to the writ the allegations as to the fitness and ability of the petitioner to have the custody and to hear evidence in support of them, committed a fundamental error. This contention proceeds upon the assumption that, since the original decree of the Nebraska court awarded the custody of his son to the relator and did not in terms prohibit him from removing the son to Montana, he was at liberty to establish his own domicile in Montana, and thus that of the son, and, having done so, it was incumbent upon the district court to determine the question of custody without refer — 434 — ence to the amendment made to the decree by the Nebraska court. Counsel for the respondents, conceding that the statute makes the best interests of the minor the paramount consideration (Rev. Codes, sec. 3783), invoke the benefit of the clause of the federal Constitution which declares that full faith and credit shall be given in each state to the judicial proceedings of every other state (U. S. Const., Art. IV, sec. 1), and insist that the amended decree concludes the rights of the parties, and that unless there has been a change in the fitness or condition of the mother since the amendment was made, the custody was properly awarded to her under the Nebraska decree. There is some conflict in the decisions upon the subject. In the case of In re Bort, 25 Kan. 308, 37 Am. Rep. 255, it was held, in a similar case, that while the decree was conclusive as between the parents, the best interest of the minor child is the paramount consideration. The court accordingly refused to give the decree of divorce the force of an estoppel or even to consider it as a fact or circumstance which ought to influence its discretion. On the other hand, in People ex rel. Allen v. Allen, 47 N. Y. Sup. Ct. 612, 40 Hun, 612, the court refused to follow the rule announced in this case, and held that a decree of a circuit court of Illinois, granting the mother a divorce and awarding to her the custody of her minor children, was conclusive upon the rights of the parents and binding upon the children for the time being, but that “as soon as the circumstances of the custodian changed or other circumstances arose which would make it for the best interests of the children that there should be a change, it would be the duty of the court in which the decree was originally made, or any other court having jurisdiction, to make such change.” The court awarded the custody of the children to the mother. The court of appeals (People ex rel. Allen v. Allen, 105 N. Y. 628, 11 N. E. 143) approved this holding, remarking that it “gave to the Illinois decree not the force ■of an estoppel, * * * but simply regarded it as a fact or circumstance bearing upon the discretion to be exercised, without dictating or controlling it.” The result of this case is that, in the ■ absence, of allegation and proof of the circumstances — 435 — of the custodian subsequent to the date of the decree, the court will accept the decree as binding as to the children as well as to the parents. In the case of Wakefield v. Ives, 35 Iowa, 238, in a controversy over the custody of a child between the father and mother, who had been divorced by a decree of a court in Minnesota which awarded the custody of the minor to the mother, it was held that in the absence of a showing as to the circumstances under which the minor was brought into the state of Iowa, the decree of the Minnesota court should be accepted as conclusive until modified, reversed or set aside for cause shown to the jurisdiction which rendered it. This, in effect, is an approval of the rule announced by the New York court, for it is apparent that the Iowa court would have reached a different conclusion • if facts had been shown indicating a change in the character or condition of the custodian subsequent to the rendition of the original decree. In Wilkinson v. Deming, 80 Ill. 342, 22 Am. Rep. 192, the question was whether the divorced wife to whom the custody of a minor child had been awarded could by will appoint a guardian, the father being still alive. The court held that the decree ipso facto took away all control of the father over the child until it should be restored to him by action of the proper court. The same conclusion is announced in the following cases: Stetson v. Stetson, 80 Me. 483, 15 Atl. 60; Hammond v. Hammond, 90 Ga. 527, 16 S. E. 265; Hanrdhan v. Sears, 72 N. H. 71, 54 Atl. 702; see, also, Church on Habeas Corpus, 2d ed., see. 82; 2 Nelson on Divorce and Separation, sec. 980. This court recognized the principle of these decisions in State ex rel. Giroux v. Giroux, 19 Mont. 149, 47 Pac. 798, where the issue was whether the father, to whom had been awarded the custody of a minor child by a decree of a district court of the territory of Arizona, had a superior right to the mother. The father predicated his claim upon the decree alone. Under this condition this court held the decree binding, but at the close of the opinion said: “"We do not wish to be understood as holding that this decree of divorce awarding the custody of the child to — 436 — the father was of itself absolutely binding upon the lower, court. •Had proof been introduced showing that the father, since the decree, had become an unfit person for the custody of the boy, and that, as between the two parents, for the child’s protection, it would have been better to award the custody to the mother, the conditions would have been different.” Thus, while recognizing the paramount importance of the interest of the minor child, the court accepted the decree of the Arizona court as conclusive in the absence of proof indicating a change in the fitness of the custodian selected by it, or in the circumstances affecting the condition of the boy, subsequent to its rendition. We think this holding in accord with the' provision of the federal Constitution, supra, as interpreted by the Act of Congress passed to give it effect, which declares that the “said records and judicial proceedings-authenticated as aforesaid, shall have such faith and credit given to them in every court within- the United States as they have by law or usage in the courts of the state from whence the said records are or shall be taken.” (U. S. Comp. Stats. 1901, see. 905; U. S. Rev. Stats., see. 905.) This must be the result; otherwise the court of the state in which a controversy should arise subsequent to the date of the decree would sit as a court of review of the action of a court of a sister state having the same jurisdiction, thus according neither faith nor credit to its findings as to the fitness of the custodian selected by it. At the same time the restriction does not interfere with the exclusive right which the courts of each state have to determine the status of persons found within their jurisdiction without control or restriction by the laws of a sister state. (Woodworth v. Spring, 86 Mass. 321.) The allegations stricken from the return of relator tendered issues only as to matters affecting the fitness of the mother at the time the decree was rendered. We think the district court properly held that these matters had been concluded by the decree, and hence did not err in striking them out. It is contended that even though the allegations were properly stricken from the return, the court should have disregarded the decree and disposed of the application as if it had not been — 437 — rendered. In this- connection it is said that the relator was free to establish his domicile in Montana if he chose to do so; that having done so, he thereby established the domicile of his son here, also, there being nothing in the original decree prohibiting him from bringing his son here, and that since the decree was amended nearly, fourteen months thereafter, the order of the district court amounted to a denial to the son of the protection of the laws of this state. There is no merit in this contention. Under the [2] terms of the decree the relator could not lawfully remove the son from the jurisdiction of Nebraska. It required that he should not put any obstacle or hindrance in the way of the visitation of the son by the mother. This was tantamount to a direction to him to keep the son within the jurisdiction of the court whose ward he then was. (Campbell v. Campbell, 37 Wis. 206.) Yet almost immediately after its rendition he removed the son to this state, thus practically taking away the right of visitation by the mother. It may be that since the prohibition of removal was only implied and not express, the relator was not guilty of a contempt; nevertheless the right was a substantial one and the relator was bound to respect it until this feature of the [3] decree had been amended or set aside. Notwithstanding the removal, the Nebraska court retained its jurisdiction, and it was competent for it to so amend the decree that the mother could enforce the right thereby accorded to her. (Morrill v. Morrill, 83 Conn. 479, 77 Atl. 1; Hammond v. Hammond, supra; Wakefield v. Ives, supra; Stetson v. Stetson, supra; Baily v. Schrader, 34 Ind. 260; State v. Rhoades, 29 Wash. 61, 69 Pac. 389.) And, as has already been said, in the absence of a showing of circumstances occurring since the amendment requiring the court of this state, in the interest of the son, to order otherwise, this part of the decree is to be enforced together with its other provisions, the effect to be given the record in this state being the same as that which is given to it in the state from which it came. (Rev. Codes, sec. 7919.) The relator contends that the petition is fatally defective, in [4] that it neither alleges the facts showing the jurisdiction of the Nebraska court, nor that the decree was duly given or made. — 438 — It i's true, as has already been said, that the petition is not specific in its allegations, but we think it alleges enough to show that the court which rendered the decree is one of record of general jurisdiction. This is sufficient. (23 Cyc. 1567.) But conceding that the demurrer should have been sustained, there was before the court during the hearing, the records of all the proceedings of the Nebraska court which resulted in the amended [5] decree. The decision was based upon the merits. No fundamental right of the relator or the son was violated. Under these circumstances we do not feel disposed to set aside the action of the court for mere technical error not affecting the [6] merits. The purpose of this proceeding is not to correct mere error within jurisdiction, except in so far as this is necessary in order to prevent irreparable injury to a litigant resulting from arbitrary or oppressive action by an inferior court. (State ex rel. Whiteside v. District Court, 24 Mont. 539, 63 Pac. 395; State ex rel. Sutton v. District Court, 27 Mont. 128, 69 Pac. 988; State ex rel. Heinze v. District Court, 32 Mont. 579, 81 Pac. 345.) The motion to quash the order to show cause is sustained and the proceeding is dismissed. Dismissed. Mr. Justice Smith and Mr. Justice Holloway concur.