176 P. 156 | Wyo. | 1918
This is a habeas corpus case involving the right to the custody of the daughter of the parties, a child born February 12, 1912. On the trial the custody of the child was awarded to the mother, and the father appeals.
The parties were married in South Dakota in 1909, living in that state and Nebraska until the fall of 1912, when appellant went to Oregon, where he was employed as a brakeman. His wife and the child joined him in Oregon in April or May, 1913. Their married life was not congenial and they separated in June, 1915, divided their household goods between them, and entered into a written agreement as to the custody of the child, in which it is recited that appellant was about to apply for a divorce from his wife; that the child should be taken back to Nebraska 'by its mother and placed in the custody and care of an aunt, appellant to clothe the child, and appellee to otherwise support it. If appellant secured a divorce, the child should be returned to Oregon at the expiration of one year. The suit for divorce was thereupon commenced, service being made upon appellee, and soon thereafter she took the child to Nebraska as agreed. Appellee defaulted in the divorce action and a decree of divorce was entered October 22, 1915, but no provision was made in the decree as to the custody of the child, nor does it appear by the record that that question was in issue in that action. Appellee married her present husband (Harden) in November or December, 1915, since which time she has resided with her husband in Cas-per, Wyoming. Appellant failed to clothe the child as agreed, and in March, 1916, it was taken to the home of its mother in Casper, where it has remained. Neither appellee nor the child returned to Oregon. Appellant applied to the court in Oregon in which the divorce was granted for a modification of the decree so as to award the custody of the child to him. Appellee appeared in that proceeding by her attorney, and on September 2, 1916, an order was made giving the father the care and custody of the child. He commenced the present case in the district court of Natrona
Appellant presents but one question in this court as fully and conclusively appears from the following statements contained in his briefs. “While appellant pleads in his amended petition that it is for the best interests of their said minor child that he be given her care and-custody, for the reason that it is for her best interests, and believes that the evidence sustains this plea, yet to simplify the hearing in this court, he waives this ground of his amended petition and rests his case in this court on his right to said minor child by virtue of the order and judgment of the Circuit Court of the State of Oregon, for the county of Clackamas, as modified on September 2, 1916.” (Appellant’s original -brief, page 3.)
“That we may he clearly understood, we want to restate our position. In this court we are resting our case on the judgment of the Oregon court, which settled and adjudicated the question of the best interests of the minor child, under the facts then existing. This judgment is binding and must be upheld in all the states of this Union, until conditions have sufficiently changed to justify a different judgment, or until the same is modified on -proper application in the court where rendered.” (Appellant’s reply brief, pages 6 and 7.)
The decided cases are not in entire harmony on the question whether or not a judgment in a divorce action awarding the custody of a minor child to one of the parties, being temporary in character, is such a judgment as is contemplated in Section 1, Article IV, of the Constitution of the United States, which provides: “Pull faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state,” where the child at the time the judgment is rendered is domiciled in another state. But our attention has not been called to any case, nor have we found any, wherein it has been held that the courts of the state of the domicile of the child are bound by the judgment of the foreign state when it is miade to appear that the conditions and circumstances of the parties have so changed
In the present case it would serve no useful purpose and only unduly lengthen the opinion to set out the evidence, consisting of oral testimony and affidavits. It appears that at the time the matter of the custody of the child was heard by the Oregon court, there was evidence to the effect that the mother was not at that time a fit person to have the care of the child for reasons not necessary to here state. Whatever objections there may have 'been to her having the custody of her child, and however well founded such objections may have been, the evidence before the court at the hearing of the present'case is, in our opinion, sufficient to sustain the conclusion that those objections no longer exist, and that the mother is now in a situation and condition to properly care for her child. She has a comfortable home with proper surroundings; and her present husband is shown to be able and willing to properly support her and the child. That the welfare of a female child of tender years is best subserved by being in the care and custody of its mother, if she is competent and a fit person to discharge those duties, is generally conceded. The finding of the trial court is a general finding, awarding the custody of the child to the mother until the further order of the court, and granting to the father the privilege of visiting it at all reasonable times. No doubt the court gave full faith and credit to the judgment of the Oregon court as to the facts shown at that time, but found such a change in the condition and the situation of the parties as warranted leaving the child in the care and custody of the mother; and in that conclusion we concur.
The judgment of the district court is affirmed.
Affirmed.