126 P. 368 | Cal. Ct. App. | 1912
The petitioner is held in custody by the sheriff of Sonoma county upon the authority of an order of commitment, made and issued by the police court of the city of Petaluma, holding him to trial in the superior court of said county for the alleged violation of section
Complaining that the commitment upon the authority of which he is restrained of his liberty is void, the petitioner seeks his release therefrom through the writ of habeas corpus.
The salient facts, as to which there is no controversy, may be stated as follows: Margaret J. McMullin and Harry Smith McMullin are the minor children of the petitioner and his former wife, Emma Harris McMullin; that, while still the wife of the petitioner, said Emma H. McMullin went to the state of Nevada, taking with her said minor children; that, after her arrival in the state of Nevada, said Emma instituted an action for divorce against the petitioner and in said action asked for the custody of said minor children; that, after the filing of the complaint in said action for divorce, the petitioner was served with summons therein in the county of Sonoma, this state, but the petitioner did not answer the complaint in said action or otherwise make an appearance therein; that thereafter, and on the twenty-first day of March, 1910, "a decree was duly made and given in the district court of the first judicial district of the state of Nevada, in and for the county of Ormsby, awarding said Emma Harris McMullin a divorce from petitioner, and further awarding the custody to her of *483 said minor children. The said decree further ordered that petitioner pay to her the sum of $100 per month as her permanent alimony."
It is further made to appear that, in the fall of the year 1911, said Emma Harris McMullin returned to the city of Petaluma, in the county of Sonoma, this state, where she again took up her residence and now resides, and that Margaret J. McMullin, one of the minor children referred to, soon followed her mother to Petaluma and there took up her residence and still resides with her mother, the other of said minor children remaining in the state of Nevada with relatives of said Emma Harris McMullin.
It is further admitted that, since the said decree of divorce was given, the petitioner has not provided said minor children "with support, maintenance or education, except that the petitioner did pay the tuition at school, and for a few other things, for said Margaret Juanita McMullin"; that the mother of said Margaret has been supporting said minor child since said divorce, and that she "has been sending money to the state of Nevada for the support of the other minor child"; that said Emma, "at all times herein mentioned, has had and still has the custody of said minors," and that the petitioner has not, at any of the times mentioned in the petition, "had any share in the custody of said minors."
On the twenty-ninth day of April, 1912, so the petition further alleges, the former wife of the petitioner qualified as guardian of the persons and estates of said minors, having previously been appointed to that office by the superior court in and for the county of Sonoma in a proceeding instituted in said court by her for that purpose.
The charge in the petition that the wife of the petitioner "deserted him and, taking with her the said minor children, went to the state of Nevada," etc., is denied by the answer; but we think that, under the circumstances as disclosed here, the issue of fact thus sought to be raised may be disregarded as unnecessary to the decision of the principal point of controversy submitted in this proceeding.
It is conceded that, the petitioner not having been served within the state of Nevada with the summons in the suit by his wife for a divorce, the Nevada court by which the decree in said action was granted never acquired, or at any time had, *484
jurisdiction of his person. It follows, therefore, that the portion of the decree allowing alimony to petitioner's wife is not enforceable in this state. (Code Civ. Proc., sec. 413;First National Bank v. Eastman,
The contention of the petitioner is that, the custody of his minor children having been awarded to their mother by the decree in the action dissolving the bonds of matrimony between him and his wife, he is, under the terms of section
The contention as thus explained involves the only question presented by this proceeding.
The position of the petitioner, as above defined, is too broadly stated to be tenable either upon principle or precedent.
It involves the statement only of a trite proposition to say that it is, in the absence of all positive law upon the subject, an imperative natural duty of parents to support and nurture their minor offspring, and it can never be assumed, where legislative regulation of that duty has been resorted to, that the legislature intended thus to relieve parents of that first and most important of all responsibilities resting upon them, except in those cases in which circumstances absolutely compel the shifting of such responsibility to the shoulders of others. On the contrary, the specific purpose of all legislation upon the subject of the duty due from parents to their minor children is to secure the religious execution of that natural duty. The proposition that parents have no right to so neglect their minor children as to make them a charge upon other persons or upon the public is too obvious to be referred to but the *485
policy of the government, in the enactment of laws regulating the duty, imposed by natural laws, owing to minor children from their parents, is not only to prevent this very result but to compel the performance of that duty in such manner, consistent with the circumstances of the parents, as that their offspring may be started out in the battle for existence with some degree of preliminary equipment. Of course, section
The main reliance of counsel for petitioner, for the support of the exceedingly broad construction to which they have been led to subject section
But counsel for the petitioner seem to be of the opinion that the fact that the provision for alimony made by the Nevada court is not enforceable in this state constitutes, within the meaning of that phrase as used in section
We do not understand that the efficacy of section
Speaking concretely, the provision in the decree awarding the custody of the minor children to their mother — the plaintiff in the divorce action — and that requiring the petitioner to pay the mother permanent alimony in an amount sufficient for the support of both herself and said children, presupposes findings that the petitioner was not a proper person to have the custody and control of said children, and that their mother was financially unable to bear the sole burden of their proper support under the circumstances as disclosed to the court, or, at any rate, that the petitioner, for sufficient reasons, should not be altogether relieved of the assumption of that natural burden. Thus it unmistakably appears that the necessity of the petitioner's assistance in the proper support of the children is shown and his duty in that respect plainly defined in the decree, yet, if petitioner's position here be sound, he may rest immune from prosecution under section
Our conclusion is, as stated, that the provision in the decree divorcing the petitioner and his wife for permanent alimony constitutes proof that the court found that it was necessary that the petitioner should continue to contribute to the support of his minor children, and that, therefore, it cannot be held that his divorced wife must provide said children *488
with support by reason of the provision contained in section
The writ is, accordingly, discharged and the petitioner remanded.
Chipman, P. J., and Burnett, J., concurred.