*1 preliminary in- granting the order is re- cause and the is reversed junction proceedings. further
manded appellant.
Costs McQUADE,
McFADDEN, J., and C. SPEAR, JJ., concur.
SMITH
Robert JELINEK, Respondent-Respondent.
Paul
No. 9797.
Supreme of Idaho. Court
May 31, 1966. *2 Bloem,
Albaugh, Pike, & Idaho- Smith Falls, appellant. *3 Bowen, Falls,
Reed re- J. spondent.
McQUADE, Justice. Clark, petitioner-appel-
In 1959Robert C. herein, (Jelinek). lant married Clark Judith 659 remain custody the children action, of the dered subjects this children, of the
Two
From
stepfather,
their
with
In 1962 the
marriage.
this
born of
Jelinek.
were
judgment
appeals.
Clark
(although
in Idaho
divorced
were
Clarks
the
clear,
appears
record is not
the
chal-
a
are faced with
At the outset we
and until
in Idaho
were married
Clarks
district
lenge
jurisdiction
to the
of the
of
domiciliaries
residents and
were
divorce
custody
children.
to determine the
custody
Idaho).
was awarded
Mrs. Clark
chil-
Respondent
that because
contends
thereafter, Mrs.
Shortly
children.
present in
nor residents
dren were not
Idaho
Chamberlain;
this mar-
married one
Clark
com-
the action was
Idaho at the time
Chamber-
riage was
annulled because
soon
menced,
jurisdiction
did not have
the court
of his
already
the time
lain
married at
was
purpose
deter-
over the children for the
May 1963 Mrs.
marriage
In
to Mrs. Clark.
disagree.
mining their
We
status.
respondent
Jelinek,
Clark
Paul
married
child,
the two
was
half sister of
Mrs.
awarded
herein. A
Jelinek
marriage.
from
children,
she
divorced
was born
chilrden when
was
Clark
Thus,
Connect
moved to Clark.
she moved to
In
when
November 1963
Jelineks
domicile
children
icut and
residence and
the two Clark
established
Connecticut with
therein,
un-
follow
was
the domicile of
children
and lived
until Mrs.
there
Jelinek
Kins
v.
timely
accident in
ed that of their mother. Clemens
in an automobile
killed
(1951).
ley,
251,
July
young
72
597 may custody Vest, not choose of the this state. Because minors child. Moss 74 v. domicile, Restatement, 328, (1953). Conflict Idaho 262 their own P.2d 116 (1934), 30 Idaho became their Laws § In this case the trial court concluded that by operation law. In such domicile Clark: and their circumstances where the children “ * * * waived, abandoned, surrender- and natural father were domiciled Idaho ed, right transferred, to or forfeited his custody only person seeking other custody the said children.” demand personally was and served within Idaho Briefly, upon the facts which this below, con- appeared personally hearing at the clusion is based are as follows: divorce jurisdiction the Idaho courts to deter- have by decree obtained (Jelinek) Mrs. Clark custody May mine of the children. See v. required pay per Clark to 840, month for Anderson, 528, $90 345 U.S. 73 S.Ct. 97 and maintenance of the children. Stephens, (1953); Stephens L.Ed. 1221 v. From the time of the divorce in 427, October 53 Idaho (1933); P.2d 52 Anno. 9 July 1962 until there evidence is A.L.R.2d 434. paid only Clark to Mrs. Clark. $50 question We come now to the of Clark testified that he sent a little more to custody should be who awarded of the two by money ex-wife orders but could not children. general parents produce As a rule natural prove pay- evidence to these legal custody right have the absolute to the ments. period During this nine-month 15-1805;1 of their minor children. I.C. Clark did not § visit or communicate with 32-1007;2 I.C. Douglas, Schiller § his children. However,
Idaho
(1930).
P. 1021
July 1963,
Idaho,
upon
In
his return to
parent-child
after
relationship
is estab
requested custody
Clark
of the children for
lished,
prima
parent
right
facie
of the
permitted
the six weeks
him the divorce
custody may
to
by competent
be defeated
Clark,
decree. Mrs.
this time had
who
proof
parent
that the natural
has forfeited
Jelinek,
married
refused because Clark
or
abandoned his
or that
They
support payments.
in arrears on the
proper person
not a fit
complete
and
to have
thereafter effectuated
settlement
guardian-
equally
1. “15-1805.
Parents
entitled to
mate
minor child are
unmarried
ship.
custody,
the father or mother of a
earn-
entitled to its
services and
—Either
minor, being
respectively
ings.
com-
themselves
If
mother be
either
the father or
petent
business,
to transact
their own
dead or be
or
unable
refuse
take
unsuitable,
custody
and not
otherwise
must
or
his or her fam-
has abandoned
guardianship
ily,
entitled
of the minor.”
the other is entitled
the child’s cus-
Rights
tody,
earnings.”
2.
“32-1007.
over chil-
services and
legiti-
dren. —The father and mother of a
Rees,
181, 141
whereby
paid
(1943).
P.2d 976
the debt
Clark
Mrs.
$180
contends,
true,
It
took
chil-
as
He then
of the
Jelinek.
nonsupport
previously
stated that
has
during
dren for
six
most
next
weeks
necessarily -syn
not
abandonment are
that summer.
onymous
nonsupport, in
and that
thereafter,
Shortly
in November
n
itself,
not
abandonment.
does
constitute
moved Connecticut with
Jelineks
*6
Altmiller,
521,
Application
285
Idaho
76
two
admitted that neither
children. Jelinek
Smith,
;
67
(1955)
P.2d
Idaho
1064
Smith v.
he nor his wife ever communicated this
statements,
349,
(1947).
ular contact. SPEAR, JJ., concur. TAYLOR just relationship cause without tain this year consti- period shall (1) for a of one McFADDEN, Justice, with whom Chief abandon- prima-facie tute evidence SMITH, (dissenting) : Justice, concurs ment.” judgment my It conclusion that (Supp.1965). 16-2005(a) See also I.C. corpus in this quashing § the writ of habeas the cause action should be reversed and be laid down can No inflexible rule trial, following remanded for new for the may be determined. which abandonment reasons. its own be decided on Each case must trial court concluded case, *7 particular al facts. In the instant custody minor “unsuitable for the of the in some though Clark testified that he was children,” abandoned, and that he “had difficulty, that he earned financial he stated waived, surrendered, transferred, forfeit- or $7,200 $6,900 in and 1964. He and 1963 right custody ed his to demand the of said to .admitted that after the moved Jelineks children.” money Connecticut, enough “There was support, pay proof In there the time to the child the first instance there was no at agree this.” hearing there’s no excuse for We adduced that at the time of the appellant court Clark’s willful with the trial that cause was “unsuitable” to required support custody for provide failure the the the minor children. awarded Vest, 328, 335, 262 P.2d bis two minor children and his disinterest Moss v. 74 Idaho 116; Standefer, 83, for attempting to communicate with them Idaho 390 Nelson v. 87 presented he 18 months is sufficient that to show P.2d 838. No evidence was n abandonedhis children. Such suitability, party also either as to his other than evidence Vest, meets the test established in Moss v. his financial condition. The trial: court supra: findings appel- in its fact recited that
600 Vest, respondent. Moss v. su- his on the testify on was witness only the lant was pra. only findings tending of fact appellant’s The behalf; wife that while also attitude, for this testify to establish the basis conclusion as to her present was appellant finding that that law are had failed Thus would seem the do so. she did not support payments July, the to make since must have been under court trial the 1963, on proof was and he did not visit the children the burden of that impression that suitability. October, 1963, finding since appellant to establish his and Vest, appellant provide ability In su- the law. Moss v. had the for This is not adequate minor pra, children and to furnish this court stated: them, support for and maintenance but wil- rule, parents a nat general have “As a fully refused to do so. of their legal ural and relationship such minor children. When appellant record shows had the prima has been facie case is established a children in his home in Idaho Falls for a upon the the burden is then made and period following of six weeks settlement prima party such facie other to overcome past payments his with former wife of due parent by showing that the natural case support. (See: for their Andersen An- v. right, forfeited or have such or dersen, 304, 551, P.2d 89 Idaho which parents are that such or at least parties, held that as between former persons proper cus not fit and to have may, consideration, wife for sufficient re- 803, Douglas, tody. v. 48 Idaho Schiller obliga- lease the husband from the former Priest, 1021; 30 Idaho 285 P. Jain support payments previously tion to make 364; 273, Es In re Crocheron’s 164 P. period, decreed.) During this re- six week tate, 441, L.R.A. 101 P. spondent wife, mother and N.S., 868; Yates, Andrino v. 12 Idaho children, only. had them on week-ends 787; 15-1805, I.C.; P. Sec. During period when chil- this six week Child, 11(a), 11(c), C.J.S., Parent and §§ providing appellant, dren were he was with 13(f), pp. 673.” support. them the decree of with Whether required payment As mon- question presented by conclu- divorce to the eys during periods appellant when sion that had abandoned his chil- children unknown, dren, were father majority opinion, discussed in the with their divorce, copy while a the decree of any finding trial did not make exhibit, no rul- offered as an wilfully intentionally in- into evidence had or *8 ing it, any no was in event made on any relinquishment rights to tended of his copy this of decree was submitted to the custody his minor Here the children. again, proof regard also the burden of in court as an The record shows this exhibit. shortly appellant Smith, had children 349, 353, that after the 1064. In Smith v. 67 Idaho him, the respondent, quoted a member of approv- with 180 P.2d with this Navy, assigned to Kelly, Cal.App. 651, submarine al from In United States re duty, the base transferred to submarine P. as follows: Connecticut, Groton, and that his wife at * * If the rule were otherwise Connecticut, children, to with and the went n —that is, adjudication if an abandon- as their any appellant out notice to predicated ment on legally could be appel It is contended that whereabouts. by support mere failure chil where lant could have ascertained result, their minor children —the in in- inquired of his former were, he dren had instances, numerable would be work a relatives, but other wife’s father or wrong upon parents. manifest It is not a refutation that without record shows difficult conceive of circumstances appellant and between broad schism arose wholly beyond control of hav- other and the father-in-law his former ing deepest affection for their chil- family. is It his former wife’s members impossible dren which render it would appellant’s relatives also contended support for them to their children or ap the whereabouts as to were advised way. would, proper in It care for them a so, children, record even pellant’s but indeed, would, rule which un- be a harsh get notice of did not appellant shows circumstances, ju- der such authorize a his untimely death of until whereabouts which natural dicial determination July, 1965. wife, Jelinek, former Mrs. parents to the charged with construc appellant If to be would for- control of their children tive notice of the whereabouts of minor ever severed.” support children and failure to or to visit them, time, during with the trial court importance Another fact deemed of ap should established time have when mother, that neither the childrens’ nor re- pellant chargeable have been with would spondent, any necessity upon ap- felt to call this It is not information. to be inferred pellant support. for He testified: opinion any way this the author of “Q. Now, ask, may you any I do know of failure of to make condones the you gone since have occasions payments minor for the Connecticut Mrs. where Jelinek time,-but during period of children upon made demand Mr. Clark non-sup has this court that been stated support money? port synonymous abandonment. is not with No, Forsman, P.2d A. I don’t. Atmiller v. *9 you majority as as
Q. opinion Isn’t correct that far The refers to §Sj Í.C. de- 16-1625(i) such a 16-2005(a) know she never did make and as supporting the trial court’s mand? conclusion that abandoned his children. I.C. 16-1625(i) § There was never A. never did. She pur- defines the term “abandoned” for the any to. could need I pose of the Act” (S.L. “Child Protective children. 321) only, Ch. for the con- definitions you in that decision Q. concurred And prefaced by in tained I.C. 16-1625 are all § demand, did to a hers not make of the term “As used in this act”. I.C. 16- § you not? 2005(a) part (S.L.1963, is the act of Ch. extent, yes. To an 145), A. probate establishing in the a court proceeding for the termination a to, nor did asked her Q. You never relationship. and child to The referred you— subsection, 16-2005(a), I.C. its own § No.— (interrupting) A. “prima terms states that it constitutes facie n — expect to, Q. you? her did evidence of abandonment under sec- this in tion”. Thus each instance the defini- A. never had reason to. We term, tions of the “abandoned” or “aban- So, arrangement Q. you that lived pro- limited donment” the statute to you something under was had respective ceedings acts. Those under the decided was best and Mrs. Jelinek applied or should consid- standards not be had decided was best for the chil- than those proceedings in other where- ered dren, isn’t that correct? applicable. they specifically made are Yes, A. for the children.” provisions applying Instead of respondent ap- recognized Moreover sections, corpus in habeas referred above to pellant relinquished any had not claim to custody of minor involving the proceedings children, respondent tes- of his be children, to has stated rule court tified : satisfactory, de- be must that the evidence parent intend- that the convincing cisive or my wife I discussed the “I and had had — desert his children. and to abandon ed
possibility adoption, I wanted and to Vest, supra. Moss v. adopt daughters, to start and I wanted adoption proceedings prior this time. 15-1805 a recognizes I.C. § However, children, my felt guardianship wife and I both father to the of his permis- competent give his if he his own Bob Clark would never to transact busi- it.” ness and is not I.C. sion for otherwise unsuitable. July 30, immediately trial on 32-1007, in effect provides § day. only the one trial equally lasted entitled child are minor earnings. custody, applied services case misapplied law this as child’s not to are the statutes re- judgment should be facts; Those sections hence lightly Justice, considered. versed. however, because of adequately lack party of time for either Appellant is the natural of these father prepare case, requires hearing for the in this they back to Idaho children. When came *10 granted a new trial be order sought regain custody. he The writ respective may parties properly frame corpus respondent, served on habeas presented bring factual issues to be so as day hearing, appel- and on the set competent court all the ma- before lant for the advised re- first time was they may desire in resolution terial evidence spondent’s petition return for the writ issues. respondent’s as to claims. case factual went