Thе parents of the child had been divorced in Kansas. The mother, in lawful custody of the child at the time, transferred her residence to Oklahoma. The father commenced this proceeding, and upon writ of habeas corpus, and uрon final hearing, the trial court .awarded permanent custody of the child tо the mother, and ordered the father to pay a substantial sum to the mother’s аttorney, and to pay substantial sums to the mother for the child’s support.
The first resрonse of the mother did not seek any recovery of money for attorney’s fee or child support. The father filed a dismissal of the action or proceedings before the mother filed an amended response with cross-рetition for the money recoveries above mentioned. The trial court declined to recognize the dismissal and proceeded to try the mattеr on the amended response when it was reached in due course.
We will nоt discuss the dismissal further than to say that in any event the trial court had jurisdiction to retain the matter as to the custody of the child, and since the evidence fairly sustains the judgment and conclusion of the court, we approve and affirm the order permitting the mother to retain custody of the child. See Jackson v. Jaсkson,
We now consider the money judgment or order against the petitioner. This general rule is stated in 25 C.J.S., Damages, § 50, page 531:
“Generally, there can be no rеcovery as damages of the expenses of litigation and attorneys’ fees unless authorized by statute or contract.”
It has been held in this state that an аward or judgment 'for attorney’s fee cannot be granted except in those cases where it is expressly authorized by statute or agreement. See Kеel v. Covey,
We therefore hold that in an action or proceeding in habeas corpus for the custody of a child there is no authority of law for the trial court to require either petitioner or respondent to pay the attorney’s fee of the other. In this jurisdiction that rule would apply without regard to the relationship or lack of relationship of the contesting parties to the child.
As to the order requiring the father to make substantial payments for thе support of the child, we observe this rule as stated in 25 Amer.Jur. § 81, page 206:
“Habeаs corpus is a summary proceeding, and, as applied to infants, its primary object is to determine in whose custody the best interests of the child will probably be. advanced, the speedy determination of which should not be hindered or delayed by attempting to determine collateral issues. Proceedings in habeas corpus to determine the right to the custody of a child may not be extended to an adjudication of claims, money demands, or unsettled accounts between the parties; and it is a general rule that the court is without power to make an award for the child’s support. * * * ”
A complete annotation on this point is found at
This exact question seems nevеr to have been passed upon in Oklahoma, but the general rule above stated is well supported by the authorities cited, and the respondent cites no authority whatever to the contrary.
It seems quite logical and proрer to fully preserve the right of parents, or in proper case, the right оf others, to test the custody *454 of children by proceeding in habeas corрus without in any such case burdening the proceedings with issues of claims of money demands or unsettled accounts between the parties contesting for the сustody of the child.
We therefore conclude that the trial court judgment should be and the same is affirmed as to the custody of the child, but the money judgment for attorney’s fee and child support should be and is reversed, and the cause remanded with directions to vacate the judgment on those particulars.