Citation Codes

Equivalent Citations

citation codes

Attorney(S)

Sullivan, Hanley Sullivan, for appellants. "Except in some jurisdictions, an application for modification of a decree as to the custody of the children should be made in the court in which the decree was rendered." 19 C.J. 352; Julian v. Julian, 60 Ind. App. 520, 111 N.E. 196. The application is regarded as a continuation of the original action. Kendell v. Kendell, 5 Kan. App. 688, 48 P. 940. The application may be made by motion in the original cause. Karren v. Karren, 95 Am. St. Rep. 815, 69 P. 465. "Subsequent changes may be made in a decree of divorce by a court in respect to the disposal of children, but no such change can be made by an independent suit seeking relief, but must be applied for in the original proceedings." Ibid. A proceeding involving the permanent custody of a minor child is a proceeding in rem, in which the res is the child in its custody. 29 C.J. 109; Terry v. State, 110 N.W. 733. Dullam, Young Burke, for respondent. The surviving parent immediately becomes reinvested with full right to the custody of the child upon the death of the parent to whom its custody had been on the divorce action. Bell v. Krause, 146 P. 847; Schammel v. Schammel, 38 P. 729. "The right of a parent to his child will often yield to consideration of its welfare, but special circumstances must exist in order to open the way to an inquiry in that regard. A court may not assume to disturb normal family relations merely on the belief that it can thereby improve existing conditions." Hollinger v. Eldridge, 132 P. 1181.

Judges

PER CURIAM.

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Smart Summary

Case Summary: Myxa Burbage Garrett v. John E. Burbage and Mrs. Robert Sharp

Factual and Procedural Background

This matter is a habeas corpus proceeding seeking custody of William Eugene Burbage, the child of Fred (father) and Myra (mother) Burbage. The parents were divorced on August 4, 1922, and the divorce decree awarded custody of the child to the father, Fred Burbage. After the decree the father, with his father John E. Burbage, placed the child in the care of Mrs. Robert Sharp; the child remained in her care following the divorce. Fred Burbage died in January 1923. Upon his death the petitioner (Myra Burbage, later named Myxa Burbage Garrett in the caption) demanded custody of the child and has continued to demand it.

The district court of Burleigh County (Jansonius, J.) made findings of fact and conclusions of law favorable to the petitioner, granted the writ of habeas corpus, and ordered custody accordingly. The defendants (John E. Burbage and Mrs. Robert Sharp) appealed to the Supreme Court of North Dakota. The Supreme Court issued its opinion on August 24, 1927; rehearing was denied October 22, 1927. The Supreme Court affirmed the district court's judgment.

Legal Issues Presented

Whether the district court of Burleigh County had jurisdiction to adjudicate a habeas corpus proceeding for custody of the child when the original divorce decree awarding custody to the father was entered in Morton County.
Whether a modification of a divorce decree awarding custody must be made in the court that rendered the divorce decree (the original court), or whether habeas corpus or a different proceeding in another jurisdiction is appropriate—particularly when the parent awarded custody has died.
Whether, upon the death of the parent to whom custody of a child was awarded in a divorce decree, the surviving parent automatically succeeds to the statutory right to custody, and whether habeas corpus is a proper procedure to assert that right when the child is located in another judicial district.

Arguments of the Parties

Appellants' Arguments (John E. Burbage and Mrs. Robert Sharp)

Because the divorce decree awarding custody to Fred Burbage was entered in Morton County, the district court of Burleigh County lacks jurisdiction to modify or disturb that decree.
Any modification of a decree awarding custody of a child should be made by the court that granted the original decree (i.e., the divorce court), and a modification is necessary to change custody.
Cited authorities (e.g., 19 C.J.; Julian v. Julian; Kendell v. Kendell; Karren v. Karren) to support the proposition that custody modifications should be pursued in the original action or by the court that rendered the decree, and that an application for modification is treated as a continuation of the original action or by motion in the original cause.

Respondent's Arguments (Myxa / Myra Burbage Garrett)

A modification of the divorce decree is not necessary when the party to whom custody was given (the father) dies; on his death there is no longer a dispute between the original parties of the divorce action over custody.
Upon the father's death the mother succeeds to her statutory right as a parent to custody of the child; the proper procedure to enforce that right is by habeas corpus when the child is not located in the county or judicial district of the original decree.
Relied on authorities holding that a divorce court's custody decree operates only during the joint lives of the parents and that upon the death of the parent to whom custody was awarded, the decree ceases to have further effect as to the status of the child and the parties.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
19 C.J. 352	Cited by appellants for the proposition that applications to modify custody decrees should be made in the court that rendered the decree.	Noted in the opinion as part of appellants' jurisdictional contention; the court discusses competing authority and statutory law rather than adopting this as dispositive.
Julian v. Julian, 60 Ind. App. 520, 111 N.E. 196	Supports view that modification of custody decrees should be made in the court rendering the decree.	Included among authorities cited by appellants; the opinion recognizes the contention but relies on other authorities and statute to resolve the case.
Kendell v. Kendell, 5 Kan. App. 688, 48 P. 940	Holds an application for modification is regarded as a continuation of the original action.	Cited in appellants' brief; the opinion references the principle but ultimately accepts that other procedures (habeas corpus) may be appropriate when the parent awarded custody has died and the child is outside the original jurisdiction.
Karren v. Karren, 95 Am. St. Rep. 815, 69 P. 465	States an application to modify may be made by motion in the original cause.	Mentioned in appellants' citations; the court distinguished the situation where the custodial parent is deceased and the child is not in the original county.
29 C.J. 109; Terry v. State, 110 N.W. 733	Proceeding involving permanent custody of a minor is a proceeding in rem (the res is the child in custody).	Referenced in appellants' brief; the court discussed jurisdictional theory and proceeded on the basis that the district court before it had jurisdiction over the persons and the child.
Re De Saules, 101 Misc. 447, 167 N.Y. Supp. 445	One of several authorities cited by respondent to support that a divorce custody decree has no legal operation beyond the joint lives of the parents.	Listed among authorities supporting respondent's position that the decree ceases to operate after the death of the parent awarded custody; the court treated these authorities as part of the body of law supporting habeas corpus and revival of parental rights on death.
Stone v. Duffy, 219 Mass. 178, 106 N.E. 595	Cited for the proposition that the custody decree does not operate beyond the joint lives of the parents.	Included among respondent-cited authorities; considered by the court in weighing the proper procedure and effect of the death of the custodial parent.
Re Robinson, 17 Abb. Pr. 399 (note)	Authority cited on the limited future operation of divorce custody decrees after death of the custodial party.	Referenced as part of respondent's supporting authorities; the court considered the line of authority but primarily grounded its decision on statute and other cases discussing habeas corpus and best interests.
Re Allen, 162 Cal. 625, 124 P. 237	Another authority cited for the view that custody decrees do not have continued operation after the death of the party awarded custody.	Noted among respondent-cited cases; the court treated these authorities as supportive of the proposition that the mother's statutory rights revive upon father's death.
Bryan v. Lyon, 104 Ind. 227, 3 N.E. 880	Listed as authority for the limited future operation of custody decrees beyond parents' joint lives.	Included among respondent-cited cases; cited as part of the body of law the court considered on the effect of the custodial parent's death.
Barnett v. Blakley, 202 Iowa 1, 209 N.W. 412	Holds that habeas corpus in custody cases invokes broad equitable power to decide custody according to welfare and best interests; divorce custody decrees are provisional and not res adjudicata except as to facts before the court at decree time.	The court quoted Barnett to emphasize two important considerations—welfare of the child and the rights of parents—and relied on the proposition that custody decrees are provisional and that habeas corpus may properly be used to decide custody based on current best interests and rights.
Purdy v. Ernst, 93 Kan. 157, 143 P. 429	Holds that after the death of the party awarded custody, the original order may be modified and the custody given to the surviving parent; the form of proceeding is not very material.	Quoted and relied upon to support the proposition that the essential inquiry is the child's welfare and parental right, not the label of the proceeding; the court cited Purdy approvingly to show habeas corpus or modification may both be appropriate.
Re Hollinger, 90 Kan. 77, 132 P. 1181	Discusses that the right of a parent to a child will yield to consideration of the child's welfare but special circumstances are required to disturb normal family relations.	Cited in the opinion and in Kansas cases discussed; the court referenced the principle that parental rights are subordinate to the child's welfare and that disturbance of family relations requires special circumstances.
Pinney v. Sulzen, 91 Kan. 407, 137 P. 987, Ann. Cas. 1915C, 649	Habeas corpus case cited for the proposition that a surviving parent deprived of custody in a divorce may regain custody on the death of the former spouse if fit.	Used by the court to show that Kansas authorities permit habeas corpus to restore custody to a surviving parent upon the death of the custodial parent when the parent is fit.
Bell v. Krause, 146 P. 847	Cited by respondent for the principle that the surviving parent immediately becomes reinvested with full right to custody upon death of the parent to whom custody had been awarded in the divorce action.	Recognized in the opinion as supportive authority for the respondent's statutory-rights argument that the mother succeeded to custody upon the father's death.
Schammel v. Schammel, 38 P. 729	Cited for the same principle as Bell v. Krause regarding reinvestment of custody rights in the surviving parent.	Included among respondent-cited authorities supporting revival of parental custody rights on death of the custodial parent.
Hollinger v. Eldridge, 132 P. 1181	States that a parent's right to a child will yield to the child's welfare but that special circumstances must exist to justify disturbing normal family relations.	Cited by respondent's counsel and discussed by the court in the context of balancing parental rights and child welfare; the court references the need for fitness and welfare consideration.

Court's Reasoning and Analysis

The Supreme Court of North Dakota examined the competing contentions concerning jurisdiction, procedure, and substantive rights following the death of the parent awarded custody in a prior divorce decree.

1. Jurisdictional and procedural arguments: The appellants contended jurisdiction lay exclusively with the divorce court (Morton County) for any modification of custody. The respondent argued that modification was unnecessary because the custodial parent had died and that habeas corpus in the county where the child resided (Burleigh County) was proper. The court considered authority on both sides but emphasized practical jurisdictional facts: the defendants here were not parties to the original divorce action, the child and the defendants were within the county and judicial district where the habeas corpus was brought, and the defendants had appeared and answered in that proceeding. Based on those facts, the court concluded it had jurisdiction over the defendants, the child, and the subject matter.

2. Substantive law on parental right and child's welfare: The court reviewed authorities and statutes addressing (a) the provisional character of custody decrees in divorce proceedings, (b) the revival of natural parental rights upon death of the parent awarded custody, and (c) the primary importance of the child's welfare. The court quoted Barnett v. Blakley for the proposition that habeas corpus in custody matters invokes broad equitable power to decide custody according to the child's welfare and the rights of parents, and that a custody decree is provisional and not res judicata except as to facts and conditions before the court at the decree time.

3. Statutory guidance: The court relied on state statutes (Comp. Laws 1913, §§ 4424, 4461, 4462) cited in the opinion: § 4424 recognizing the natural right of the parent and specifically providing that if the father is dead the mother is entitled to custody; § 4461 directing the court to be guided by the best interest of the child in temporal, mental, and moral welfare; and § 4462 giving preference to a parent as between a parent and others. The court reconciled these statutory provisions with the authorities discussed, emphasizing that parental rights are subject to the child's best interest and that preference is given to a parent over non-parents.

4. Applying law to the facts: The court found that the trial court had litigated and found that the mother was a fit person, that she had a good home, and that she was able to care for and educate the child. Those findings were supported by the evidence. Given the mother's statutory entitlement upon the father's death (subject to fitness and the child's best interest), the court concluded the trial court's judgment granting the writ of habeas corpus and awarding custody to the mother was correct.

Holding and Implications

Holding: The Supreme Court of North Dakota affirmed the district court's judgment granting the writ of habeas corpus and awarding custody of the child to the mother. (Judgment Affirmed.)

Implications and direct effects:

The direct effect on the parties is that the mother's petition succeeded: the writ was granted and custody of William Eugene Burbage was awarded to the mother.
The court's ruling rests on (a) its determination that it had jurisdiction over the defendants, the child, and the subject matter where the child and defendants were located and had appeared, (b) statutory provisions recognizing the mother's right to custody upon the father's death (subject to fitness and the child's best interest), and (c) supporting authorities recognizing the provisional character of divorce custody decrees and the appropriateness of habeas corpus in custody disputes.
The opinion does not purport to establish a novel rule of law but applies existing statutes and precedents to the facts before the court; its practical consequence is to confirm that where the custodial parent named in a divorce decree has died, a surviving parent may pursue custody (subject to fitness and the child's welfare) in a habeas corpus proceeding in the jurisdiction where the child and respondent custodians are found.

Opinion per curiam. BIRDZELL, Ch. J., and BURKE, NUESSLE, CHRISTIANSON, and BURR, JJ., concurred. Rehearing denied October 22, 1927.

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MYXA BURBAGE GARRETT, Respondent, v. JOHN E. BURBAGE and Mrs. Robert Sharp, Appellants.

PER CURIAM.

This is a habeas corpus proceeding for the custody of William Eugene Burbage, the child of Fred and Myra Burbage, who were divorced on the fourth day of August 1922. The decree of divorce gave the custody of the child to the father, Fred Burbage, who with his father, John E. Burbage, placed the child in the care of Mrs. Robert Sharp, where it has been since the divorce. Fred Burbage died in January 1923, and upon his death the petitioner demanded and has continued to demand the custody of her child.

Findings of fact and conclusions of law were made favorable to the petitioner, the writ granted, and the defendants appeal.

It is the contention of the defendants that, since the decree of divorce granting the custody of the child to Fred Burbage was entered in Morton county, the district court of Burleigh county has no jurisdiction of the case. Appellants contend that any modification of a decree awarding the custody of the child should be made by the court granting the decree, which is probably true if a modification is necessary.

It is the contention of the respondent that a modification of a decree is not necessary when the party to whom the custody is given dies; that the divorce action was an action between Fred Burbage and Myra Burbage, and that since Fred Burbage is dead there can no longer be any dispute between the parties to the action of which the court had jurisdiction; that upon the death of Fred Burbage, Myra Burbage succeeded to her statutory right as a parent to the custody of her child and that the proper procedure is by habeas corpus, which could not be had in Morton county, for the reason, that the child was not in that county or in that judicial district. In support of this position respondent relies on the following authorities: Re De Saules, 101 Misc. 447, 167 N.Y. Supp. 445; Stone v. Duffy, 219 Mass. 178, 106 N.E. 595; Re Robinson, 17 Abb. Pr. 399, note; Re Allen, 162 Cal. 625, 124 P. 237; Bryan v. Lyon, 104 Ind. 227, 54 Am. Rep. 309, 3 N.E. 880. These authorities go so far as to hold that the decree of a divorce court has no legal operation beyond the joint lives of the parents and that on the death of the party to whom the custody of the child is given in the divorce action all matters of the status of the parties and their infant cease to be affected by their decree of divorce, and the decree has no further future operation.

In the case of Barnett v. Blakley, 202 Iowa, 1, 209 N.W. 412, the Iowa court said: "The courts generally have departed from the original purpose of the writ which was to determine whether or not the petitioner was being illegally imprisoned. As now used and recognized, in cases involving the custody of children, the writ of habeas corpus operates to invoke the broad power of the court of an equitable nature to determine the question of custody of a minor child according as the welfare and best interest of the child may require, having due regard to the legal rights of parents, or others. The decree awarding custody of a child in a divorce action is provisional and temporary in character, and is not rest adjudicata except as to the facts and conditions before the court at the time of the decree, even as between parties." It will be noted that two important matters are considered by the Iowa court, first, the welfare of the child, and second, the right of the parents and others.

The Kansas Court in Purdy v. Ernst, 93 Kan. 157, 143 P. 429, held: "That after the death of the party to whom the custody was given the original order in the divorce court might be modified and the custody of the child given to the surviving wife." In this case the court said: "The form of proceeding is not very material, but, since a change of custody necessarily works a modification of the original order, it is proper to proceed in the divorce action. The natural right of the mother to the custody of the child was not completely annulled by the divorce decree, and upon the death of the father revived, subject to the condition that she was a suitable person." The court cites as authority: Re Hollinger, 90 Kan. 77, 132 P. 1181; Pinney v. Sulzen, 91 Kan. 407, 137 P. 987, Ann. Cas. 1915C, 649. It will be noted that the court said: the form of the proceeding is not very material, and it quotes with approval from Re Hollinger and Pinney v. Sulzen, both habeas corpus cases, and both holding that the surviving husband who was deprived of his child in a divorce action, might on the death of his former wife regain the custody of his child in such proceeding against any other person if he is shown to be a fit person.

Under these Kansas decisions, the important thing is not the kind of a proceeding, but, first, the welfare of the child, and second, the right to its custody, and if the parent is a fit person he will be given the custody of his child in a modified decree in the divorce court, or he may proceed by habeas corpus. In other words, the important matters involved, viz, the welfare of the child, and the right to its custody had been litigated in the two cases in habeas corpus proceedings and in the one case by a modification of the divorce decree, and the supreme court being of the opinion that the important matters were decided right, affirmed the judgment in each case.

Section 4424, Comp. Laws 1913, recognizes the natural right of the parent to the child and provides that if the father is dead, or is unable, or refuses to take the custody, or has abandoned his family the mother is entitled to the custody of the child. In the case at bar the father is dead and the mother under the statute is entitled to the custody of the child; but under § 4461, Comp. Laws 1913, in awarding the custody of a child the court is to be guided by what appears to be for the best interest of the child in respect to its temporal and its mental and moral welfare. But, as between parents, neither parent is entitled to it as a matter of right, and under § 4462, Comp. Laws 1913, preference is given to a parent as between a parent and others.

The defendants in the case at bar are not parties to the divorce action; they are not bound by it; they do not live in the judicial district in which the judgment was rendered, but they do live in the county and judicial district in which this action was brought. They have appeared and answered. The court has jurisdiction over them; over the child and over the subject matter. The welfare of the child, the fitness of the mother, and her right to its custody were litigated in the trial court, and the findings and conclusions of that court that the mother is a fit person, that she has a good home and is well able to care for and educate her child are well supported in the evidence. The judgment is affirmed.

BIRDZELL, Ch. J., and BURKE, NUESSLE, CHRISTIANSON, and BURR, JJ., concur.

GARRETT v. BURBAGE