*1 ownership being of the fee land, the entire value exempt which was from institution taxa- a charitable para- stated in the second held, as The court tion. “Though syllabus, graph that tenant for keep to down it to the life owes remainderman require not the life tenant alone does taxes, pay the land when such fee is ex- the fee of taxes on profits empt the net taxation from the from because bequeathed to a church for have been edu- estate real cational and purposes, as the life charitable pay tenant’s obligation to the remainderman taxes is and to n entity.” person or no other of the. reasons, Court of
For these . affirmed. Pleas is Common
Judgment affirmed. J., Ross, JJ., P. concur Matthews Hildebrant, opinion judgment. syllabus, in the Appellant. Appellee, May, v. Anderson, *2 15, 1951.) (No. December 696 Decided appellee. MacDonald, for M. Mr. J. Springer Ralph and Mr. Atkinson,
Mr. F. W. for appellant. appellant The here, J. Leona Anderson Griffith,
May, seeking the reversal of the County, Court of Probate Columbiana entered September day on the 21st of 1951. That court al- corpus ordering a writ of habeas lowed the three minor Leona Anderson children of and Owen Anderson to the released father. corpus proceeding habeas
The is based a de- county County, of cree of court Waukesha and wherein control of the children were petitioner to the father, awarded case. The appeal questions was filed on of fact, law and but it upon ques- been to this has- submitted counsel only, appearing of it tions law that the action is not a chancery case. following stipulated: facts were May,
“That the defendant, Leona Anderson is a na- plaintiff tive of Wisconsin and state that the defendant married the state of Wisconsin up and were residents of and domiciled in that state 1946, part latter to the of the month of December, at the defendant time left the state of Wisconsin with the aforesaid and came to the state of subject Ohio; that the said children which are the corpus, to wit: in habeas this action Ronald Anderson, Anderson, and James Anderson, Sandra were born in all of Wisconsin at times the state resided in that plaintiff parents, their state with defendant, part latter of December, 1946, until the at which time Ohio; them into the defendant the state of plaintiff, Anderson, that the Owen at all times has been a resident and domiciled at and is now county in the state of Wisconsin. Leona defendant,
“That said estab- separate lished a domicile the state of Ohio the lat- part December, ter has ever since that in Lisbon, time been domiciled Columbiana Ohio. February plaintiff 5, 1947,
“That on herein was granted a divorce in the court of Waukesha, state of Wisconsin. That- at the time said divorce was petition granted, and at the time the for said divorce *3 filed, was as as at all other well times in the between, May, Leona Anderson defendant, was in Lisbon, Co- county, Ohio, lumbiana and had with her at all said times the three minor children aforesaid, An- Ronald derson, Sandra Anderson and James Anderson.
“That the service made on the defendant proceedings, connection with said divorce was tliat by county, made the sheriff of Columbiana personally copy which he the handed defendant a of county, the summons from Waukesha Wisconsin, and copy petition county of the divorce filed in the county, of said Waukesha Wisconsin. That the de- appearahce fendant never entered her in the court of state of and waiver, filed no answer or demurrer therein. That plaintiff the among obtained a divorce, decree of things, adjudged
other and decreed that the custody, management care, and education of the minor parties plaintiff, children of the to the awarded right chil- defendant to visit said subject to the That said de- times. all reasonable at dren cree was pearance any ap- by in the absence of default entered the defendant. plaintiff Lisbon, came to Co- the thereafter “That police accompanied by a county, Ohio, and, lumbiana village demanded Lisbon, Ohio, of the of officer from the de- children minor the aforesaid obtained plaintiff the has retained That the fendant. February having of since children minor of said county, Wis- him to Waukesha them back with taken consin. proceedings legal have of record no further
“That since the aforesaid di- case in said divorce filed been was entered. decree vorce plaintiff July the 1, 1951, “That him on a visit to Columbiana children with aforesaid county, voluntarily permitted the children Ohio, and time to their go a limited of for on a visit mother, That the herein. mother’s, the defendant to surrender said children defendant, has refused said plaintiff plaintiff, filed this action and the has to possession and of said chil- recover the to dren.” Testimony Mr. was tak- Mrs. concerned, case are the issues and, so far as en pertinent to the solution record that all the that is of the problem. father The conduct of the instant following the Probate mother of the reprehensible decision, its announcement Court’s jbe part may each, no has that conduct as on. . bearing of this case. on the decision testimony mother bears direct- the father and *4 ly May which Mrs. took the under the conditions to Wisconsin children from follows: testified as
Anderson agreed could take them with her that she “A. I pro arguing she could and eon statement after up, And if her mind made she her. was them with take things at home. That was the understand- settle could ing she left. I had when bring say the children she would Did she
“Q. agreed when she left. to it A. back? She telephone you conversation with had this ‘1Q. When Day, A. what said? was Year’s her New coming- I’m thing not is, ‘Owen, remember I can ” back.’ bring up her to the chil- her and asked “A. I called ’’ I them all to come back. asked dren back. that at the time she left Wiscon- testified Mrs. years, years, children’s.ages eight five were sin months. purpose coming- to A. was the Ohio? What “Q. myself away by get to think it over or He told me to back do. Either come to live or what I wanted separate. ‘‘ you left what was said about When Q. Nothing A. said. He said it was was the children? separate up said he would never the court. He them. three of anything bringing said about Was there
“Q. Nothing A. was said. back to Wisconsin? your understanding? A. To come was What “Q. stay. I it over and decided to here to think your understanding about the chil- was “Q. What understanding. no All A. There was I know dren? napers had them with me. When the that I was attorneys I to do. asked what served ypu you Wisconsin, left had At the time made ‘.‘Q. you your mind that would not come back to Wis- really left I didn’t A. At the time I know consin? going I to do.” was what apparent it is us, the record before Leona
From Waukesha, native of Wisconsin: *5 that she and Anderson were Owen married up middle and thirties took residence Waukesha they where lived their entire married that life: their permanent freely domicile and home, both, chosen up 26, 1946; was fixed Waukesha to December that May 26, December Leona Anderson 1946, left Wau- directly kesha with the three children came and domicile; Lisbon, Ohio, where she established her knowledge she the children to Lisbon with the and consent of the father to think over her domestic differences with her husband, and decide whether she longer day him; would live with that on New Year’s her, coming she told back; husband she was not and thereupon requested that the father the return of the children as he had stated to the mother that the mat- custody ter of their “was the’court”; that on January 6, 1947, Anderson filed Owen his action in custody Waukesha, Wisconsin, for divorce and granted children; that a divorce was to him on Febru- ary 5, 1947, which decree was made in the absence of the mother and the children from the state of Wiscon- jurisdiction sin and without service or over them other than the substituted service in the divorce case.
The court awarded of the children to the father. The May service made on Leona Anderson through in the divorce case was the sheriff of Cohlmbiana Ohio, who served her with sum- copy petition. personal mons and No service nature was made Leona Anderson in the state of Wisconsin. Neither she nor the chil- dren were in petition Wisconsin at the time the divorce long was filed or until after the decree of granted. They divorce was at all times remained in February Lisbon,. Ohio. In 1947, after the decree of granted, divorce was Anderson Owen came to Lisbon copy with a county of the Waukesha court order and from Mrs. children tbe obtained demanded him back to Wisconsin. them with and took 1950, during happened Nothing 1947,1948, remained with the half 1951. first the father in July 1951. On until from 1947 brought the children to July 1, 1951, Owen permitted them to visit Columbiana mother now of time. The for a limited mother *6 father, to the hence the to surrender refuses proceeding. children- to in the Ohio When Mrs. her and between understood 1946, it was December temporary and conditional a that it was her husband regarding taking mind her she could make until permitted her to take He difficulties. their marital return to did not Wiscon- on this and if she them basis matter of determine the cus- the court sin, then would unquestionably tody. meant the Wau- “The court” having- County the kesha jurisdiction Court which of their at the time discussions. over them temporary purpose special to a She came for Ohio uncertain She was as her when she left Wisconsin. coming Something occurred after she left ever back. permanent adopt her as her which induced Ohio home. in
Did the court of the against proceeding divorce on substituted service mother the mother and children in when both power ? have control over the children or change change Did effect a the mother’s of domicile of domicile for children? case summons served in the divorce amounted publication,
to constructive service or service though al- per- county, Ohio, the sheriff of Columbiana sonally copy handed Mrs. the summons and petition.
Sections 262.12and 262.13 the Wisconsin Statutes (1949) provide, part, as follows:
Section 262.12“When the summons cannot with due diligence be served within the the service of the state, may by publi- summons be state made without the or appears cation a it defendant when from the veri- complaint necessary proper party fied that he is a or special provided proceeding to an action or as in Rule any following 262.13, cases: ment of “ (4) C Í “ (5) When the action Section 262.13 [*] [*] # In the marriage. cases “* ’’ specified * * for a Rule divorce or for annul- 262.12 plain- may, option by pub- tiff at his and in lieu service per- lication, cause to be delivered to defendant sonally copy without the state summons complaint object verified case or notice of action as the may require, delivery shall have the same ’’ completed publication mailing. effect as a Where during were these children domiciled filing peti- of time between the of the divorce granting tion and the of the decree?
Two elements concur to must establish domicile— (1) (2) remaining. residence intention of normally
The of a domicile minor child is that of the change father. A minor cannot his domicile. Was the removal of these three children from Waukesha, Wisconsin, under circumstances, the such as to effect a termination of their domicile with the father there in Wisconsin? We do not think so. temporary
The mother on a them Ohio understanding they and conditional with basis that separate should be returned if she decided to from her separate, husband. She decided and it then was permission temporary that the ended. she Until said phone day to him over the on New Year’s of 1947, changed coming had not she back,” not “Owen, I’m domicile. her until De- in domiciled Wisconsin were
The children had exclu- court where Wisconsin 1946, 26, cember juris- its did not lose jurisdiction that court sive diction going with the mother who their reason program of her and decide to meditate to Ohio went Temporary chil- absence future. life for change legal their set- not could Wisconsin dren from jurisdiction did not lose The Wisconsin tlement. while temporarily in they Ohio. entirely are cases in each these
While facts we believe us, in the case before those different from Judge, reasoning v. 13 Ohio in the cases Cohen the App., (N. S.), Keenan, 5 457; v. Keenan C. 449, 32 C. (N. S.), 581; Black, Black v. D., Ohio N. O. 12, 17 P. supports our conclusions. E., 144 N. St., 392, their father’s con- with children were Ohio The permission. After that announcement on sent and day, coming he back,” I’m not “Owen, New Tears children, demand she return the that demanded ignored. that time forward The children from was were in permis- against his and without will his
Ohio during di- of time that the It that sion. proceedings and concluded. were commenced vorce change mother under these domicile of the change effect a did not wise circumstances children. the domicile of the to order the release no alternative but
The court had will be affirmed. that order its Judgment affirmed. Phillips JJ., in the judgment. concur Nichols, holding concur I cannot J. Nichols, County, jurisdiction had court of Waukesha *8 parties of the minor children to award to the action, for the reason that divorce such children jurisdiction 'that not within court at petition for time the was filed or at divorce time the. the decree was rendered. right my finding am
However, I that the Wau- if County jurisdiction, kesha did not have- Court then corpus proceeding this habeas in Columbiana solely one to determine which of was ing two narents hav- equal rights to children be living together should awarded parents thereof since the are not joint custody cannot have and control thereof. proceeding In case, in the in Columbiana judgment awarding custody the court’s to the father entirely supported by the evidence and is for the best interests children.
I, therefore, concur for the reasons stated. Appellee. Meyerholtz, v. al., Appellants,
Schultz et