197 A.D. 176 | N.Y. App. Div. | 1921
The appellant is the maternal aunt of the infant Mary Elizabeth Standish, whose custody is in controversy in this proceeding. The relator resides in Detroit, Mich., where he married Mary Simons November 11, 1914. This marriage did not prove to be a happy one, and after a few months they separated. In October, 1915, while they were still separated, Mary Simons Standish gave birth to the above-mentioned infant. After the birth of said child the relator contributed nothing to her support or that of her mother, and in 1917 the mother of said infant instituted an action for divorce against the relator in the State of Michigan on the grounds of cruel and inhuman treatment, non-support and abandonment. Pending the trial of that action and against relator’s opposition, an order was made directing him to pay one dollar per day for the support of his wife and child. He was compelled to pay this sum with difficulty. In November, 1917, a final decree of divorce was entered in said action, awarding the custody of the child to the mother and directing the relator to pay one dollar per day for the purposes above mentioned.
The appellant urges the following reasons why the decree or order herein should be reversed: First, “ Habeas corpus, being a legal remedy, will not lie to take a child from its legally appointed general guardian." The appellant's contention under this point is that habeas corpus is a legal remedy and in determining to whom the custody of this child shall be awarded the court cannot consider the welfare of the child but must be guided solely by the question of the legal custody, and that, as in this case, the aunt (appellant) has been appointed the guardian of the child, the writ must be dismissed. That the purpose and design of the writ is to relieve from illegal restraint and that there can be no illegal restraint where there is legal custody. The appellant's attorney cites many cases which he claims support his position, but the case upon which he places the most reliance and which apparently most strongly favors his contention is People v. Wilcox (22 Barb. 178). Quotations are made from this case which unequivocally assert all that appellant claims, but upon an examination of the whole opinion I think that the reason the learned judge did not exercise his chancery powers was not because upon the return of such a writ the court could not exercise equity powers, but because the writ was, in the first instance, returnable before a Supreme Corut commissioner and, in the absence of such commissioner, was heard by a justice of the Supreme Court. In the coruse of his opinion the learned judge said: “ I am entirely satisfied that upon this writ I possess no other powers than such as are possessed by a Supreme Court commissioner under the statute, and that
Another case cited is People ex rel. Pruyne v. Walts (122 N. Y. 238). In that case (at p. 241) the court, by Brown, J., said: “ This case is very similar in its facts to In re Welch (74 N. Y. 299). There, as here, the contest was between the testamentary guardian appointed by the will of the father and those to whose custody the mother had committed the child. There, as here, the Special Term dismissed the writ, without prejudice to further proceedings, for reasons affecting the health and welfare of the child. This court dismissed the appeal, holding that such reasons justified the withholding the custody of the child from its legal guardian, and that the matter was one so purely within the discretion of the Special Term that its conclusions would not be reviewed.” This is a clear, unmistakable holding that the court may, in a habeas corpus proceeding, consider the welfare of the child; in other words, exercise equity powers. The appellant, I think, misreads this opinion and interprets it as a dismissal of the proceeding upon legal grounds, with permission to renew for reasons affecting the health and welfare of the child. I do not so construe this opinion. The writ was dismissed for reasons affecting the health and welfare of the child, without prejudice to further proceedings. The Court of Appeals has recently had occasion to examine this question, and in People ex rel. Riesner v. N. Y. N. & C. Hospital (230 N. Y. 119, 124), by Cardozo, J., when construing section 486 of the Penal Law, it said: “ The writ of habeas corpus was limited in its origin to cases of restraint under color or claim of law (N. Y. Foundling Hospital v. Gatti, 203 U. S. 429, 438; People ex rel. Pruyne v. Walts, 122 N. Y. 238, 241). In time, however, it was extended to controversies touching the custody of children, which were governed, not so much by considerations of strictly legal rights, as by those of expediency and equity and, above all, the interests of the child [N. Y. Foundling Hospital v. Gatti; People ex rel. Pruyne v. Walts; Matter of Knowack, 158 N. Y. 482; Matter of Waldron, 13 Johns. 418; The Queen v. Gyngall, 1893, 2 Q. B. 232]. We find in this statute no suggestion of a purpose, if we were to assume that
That brings us, then, to the determination of the question as to whether the decree of the Court of Law and Chancery of the State of Virginia awarding the custody of the child to its general guardian, the appellant herein, is res adjudícala. That proceeding, as recited above, was a proceeding exactly like this, instituted in a court of competent jurisdiction, having unquestionable jurisdiction of the proceeding and of the parties, and in it it was determined that the best interests of the child required her to remain in the custody of her aunt. The courts of this State have held that a decree or final order in a habeas corpus proceeding is an adjudication which may be pleaded as res adjudícala. (Mercein v. People, 25 Wend. 64; Matter of Price, 12 Hun, 508, 511; People ex rel. Keator v. Moss, 6 App. Div. 421; Matter of Quinn, 2 id. 103, 104; People ex rel. Ludden v. Winston, 34 Misc. Rep. 21; affd., 61 App. Div. 614; Matter of Lederer, 38 Misc. Rep. 668; People ex rel. Multer v. Multer, 107 id. 58; People ex rel. Lawrence v. Brady, 56 N. Y. 182; Matter of Lee, 220 id. 532, 538.) In Mercein v. People (supra) the court held: "An adjudication of a court of record or of an officer having authority to act in the matter on the question of the custody of an infant child brought up on habeas corpus, may be pleaded as res adjudicata, and is conclusive upon the same parties in all future controversies relating to the same matter, and upon the same state of facts.” Under the Constitution of the United States, " Full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State ” (U. S. Const., art. 4, § 1); and they shall have such effect in any court within the United States as they have, by law or usage, in the courts of the State from which they are taken. (See
I think there is no force in the respondent’s contention that there was a lack of jurisdiction, or that the proceedings were deprived of their conclusive character by the fact that the appellant was not then a resident of Virginia and her appearance voluntary. Neither can the binding force of that decision be in any degree mitigated by claiming that the proceeding was not well tried. There was no occasion for the appellant to prove the law of the State of Virginia. In the absence of proof to the contrary, it is assumed to be the same as our own. (Monroe v. Douglass, 5 N. Y. 447; Mount v. Tuttle, 183 id. 358.)
The cases cited by the respondent are not applicable. They are cases where the infant was not before the court, or the appointment of a guardian made where the infant was brought into the jurisdiction of the court by trickery, such as Matter of Hubbard (82 N. Y. 90); People ex rel. Winston v. Winston (31 App. Div. 121). After citing these cases respondent says in his brief: “ So in the case at bar,' while the Virginia court obtained jurisdiction, it should never have entertained jurisdiction, as the infant was a resident of New York.” We, of course, are not called upon to pass upon the propriety of the action of a court of a foreign State. If with jurisdiction it has acted, that action is binding upon us. The Special Term avoided the conclusive character of this action by holding that its determination was not final. The determination of the court was, “ the Court is of the opinion that it is best for the interest of said infant that it remain for the present in the custody and under the control of its aunt, Hazel Simons Truitt.” That was a final determination. It finally determined the question then before it, but recognized the fact that as the child grew older’ a different custody might be desirable; that the circumstances of the parties might change. It perhaps was an unnecessary precaution. It reserved the right to the court to change the custody of the child when the situation of the parties made such change desirable. It merely stated what the court undoubtedly had the power to do without any such reservation. Therefore, to justify this proceeding, the relator must show that there had
The petition is barren of any allegation, there is no proof and the court does not find that the appellant is not as competent and is not in every way just as well fitted to care for this child at the time of this trial as she was at the time of the former trial. The court merely disagreed with the Virginia court as to in whose custody the best interests of the infant required her to be placed. The decision, of the Virginia court must be deemed res adjudicata of the questions involved in this proceeding.
The order herein awarding the custody of the child to the relator should be reversed and the proceeding dismissed.
Blackmar, P. J., Mills, Rich and Putnam, JJ., concur.
Order awarding custody of the child to relator reversed, and proceeding dismissed.