Revello v. Revello , 100 Idaho 829 ( 1979 )

BAKES, Justice.

I

Petitioner appellant Patsy A. Revello appeals from an order of the district court which denied her petition for habeas corpus filed to obtain custody of her two minor children from respondents John and Lucia Revello, the children’s paternal grandparents. We affirm.

Patsy Revello married Gary Revello, the son of respondents John and Lucia Re vello, in 1969. A daughter, Shauna, was born in 1970 and a son, Benjamin, in 1972. Marital problems developed which led to a trial separation by Patsy and Gary in March, 1974. Custody of the two children was at this time given to Gary’s parents, John and Lucia Revello, respondents herein, by mutual consent of both the children’s parents and grandparents. In May, 1974, after some discussion and consideration by both the parents and grandparents, Gary and Patsy Revello each executed a “Consent to Appointment of Co-guardian and Waiver of Notice” in which they consented to appointment of respondents John and Lucia Revel-lo as co-guardians of the persons of Shauna and Benjamin. They also waived any rights which they as natural parents may have had to notice of hearings in any subsequent proceedings with respect to the guardianship appointment. A hearing in the matter was held in the magistrate division of the district court of the Seventh Judicial District, in and for the county of Bonneville, on July 14, 1974. On this date an order of co-guardianship was entered by the magistrate which stated that the best interests of the two minor children would be served by the appointment of the grandparents as co-guardians of the children. Letters of guardianship were issued by the court to the respondents, John and Lucia Revello.

In the fall of 1974 Gary and Patsy made an attempt at reconciliation and the two children were returned to them by the grandparents. The reconciliation attempt failed however. The children were returned to their grandparents’ home in November of 1974 and Gary and Patsy separated.

Gary obtained a default divorce from Patsy in December, 1974. The court in the divorce proceeding granted Gary and Patsy joint custody of Shauna and Benjamin. However, the grandparents were not made parties to that proceeding, and the record does not indicate that the divorce court was aware of the guardianship. The couple spent Christmas, 1974, at Gary’s parents’ home in Idaho Falls with the two children. Patsy then moved to Boise and obtained employment, and Gary returned to Pocatello to complete a pharmacy program at Idaho State University. Shauna and Benjamin remained with their grandparents in Idaho Falls.

Patsy made visits and phone calls to the children in Idaho Falls in 1975 and 1976 and took temporary custody of the children during holidays and vacations in those years. The bulk of the children’s time, however, was spent at their grandparents’ home in Idaho Falls during those two years. In 1977 both Gary and Patsy began attempts to obtain custody of the children from John and Lucia Revello. At that time, the grandparents were reluctant to allow the children to leave their home, feeling that neither of the two parents was capable of properly caring for the children and that the children had become established in the grandparents’ home in Idaho Falls, making a change in custody detrimental to the children’s emotional wellbeing.

On November 23, 1977, Patsy filed a “Petition for Writ of Habeas Corpus” in the Bonneville County district court in an attempt to obtain custody of her children.¹ A two day trial was held in the matter on November 30, and December 1, 1977. Patsy, the grandparents, and several of Patsy’s friends testified as to Patsy’s fitness to serve as a parent for the children, and psychiatric and psychological evidence was admitted. The trial court ruled that Patsy had not abandoned her children, as was maintained by the grandparents, but stayed the writ of habeas corpus pending home studies of both Patsy’s and the grandparents’ homes during visits by the children to each. In January, 1978, after receiving reports on the home studies, the trial court awarded the grandparents “temporary custody” of the children until the end of 1977-78 school year. The district court granted Patsy custody during the children’s 1978 summer school vacation. A final decision on the custody question was reserved until August, 1978, at which time the court indicated that it would review the case and decide then which party should have custody of the two children.

In August, 1978, following the children’s summer stay with their mother in Boise, the trial court, by. agreement of the parties, conducted an interview with the children. In accordance with the parties’ agreement, the parties, their counsel, and the court reporter were not present at the interview. On August 22, 1978, the trial court issued a memorandum decision finding that Patsy was not emotionally fit to raise her children and that the best interests of the children would be served by permanently quashing the writ of habeas corpus. The court in this order referred to the interview it conducted with the children, stating that in it Shauna had indicated a strong desire to live with her grandparents, and not her mother.

Findings of fact, conclusions of law, and judgment were entered in October, 1978, which reiterated the court’s belief that the best interests of the children would be served by permanently quashing the writ of habeas corpus and leaving custody of Shauna and Benjamin with respondents. The trial court stated in its findings of fact that the children had experienced emotional and behavorial problems at the time of the parents’ divorce and that while in the custody of respondents those problems had largely been resolved. The court found that petitioner Patsy Revello “has a history of emotional immaturity and instability, and inability to properly maintain, care and provide for the proper training, education and emotional needs of said children, and has not shown herself to be emotionally fit to have custody of the said minor children.” The court found the respondent grandparents to be fit and capable to have custody of the children and determined that the best interests and welfare of the children would be served by leaving custody of the children with their grandparents.

Petitioner Patsy Revello maintains on this appeal that the trial court made several errors in quashing the writ of habeas corpus. She claims that I.C. § 32-1007 ² establishes a statutory presumption that the natural parents of minor children are entitled to the care, custody and control of their children absent an affirmative showing that the parents had either abandoned their children or were unable to care for the children. Petitioner asserts that the trial court denied her the presumption that natural parents should raise their own children by applying the “best interests of the child” standard to this case. ' Petitioner also claims that there is no substantial or competent evidence in the record to support the trial court’s finding that she is unfit to care for her children. She claims that the trial court erred in placing the burden of proof on her to show that she is emotionally fit so as to have custody; that it was error to base a decision to give the grandparents custody in part upon the fact that the children have spent a large part of the time since the parents’ 1974 divorce in the grandparents’ custody; that the fact that the children suffered emotional problems during the breakup of their parents’ marriage which have since been alleviated is irrelevant to a present decision regarding custody; and that the trial court acted improperly in basing its final decision in part upon statements by the two minor children made in an interview between the children and the trial court outside the presence of the parties, their attorneys, and a court reporter, even though she had stipulated to that procedure through her counsel.

II

We affirm the order of the trial court quashing the writ of habeas corpus, although not for the reasons stated by the trial court in arriving at its decision. This Court has consistently held that “[wjhere the order of the lower court is correct but entered on a different theory, it will be affirmed on the correct theory.” Robison v. Compton, 97 Idaho 615, 617, 549 P.2d 274, 276 (1976); Anderson & Nafziger v. G. T. Newcomb, Inc., 100 Idaho 175, 595 P.2d 709 (1979); City of Weippe v. Yarno, 96 Idaho 319, 528 P.2d 201 (1974); Rinehart v. Farm Bureau Mutual Insurance Co. of Idaho, 96 Idaho 115, 524 P.2d 1343 (1974); Church v. Roemer, 94 Idaho 782, 498 P.2d 1255 (1972). The writ of habeas corpus was properly quashed by the district court for the reasons set out below.

The Idaho version of the Uniform Probate Code governs the appointment, authority, responsibility and removal of guardians of minors. I.C. §§ 15-5-201 to -212. Under I.C. § 15-5-209, a court appointed guardian of a minor has the “powers and responsibilities of a parent who has not been deprived of custody of his minor and unemancipated child . . . .” Unless it is otherwise indicated in the order of guardianship, a court appointed guardian of a minor child is entitled to the custody of the ward. Custody is but an incident of guardianship. I.C. § 15-5 — 209; Miller v. Miller, 158 Conn. 217, 258 A.2d 89 (1969), cert. denied, 396 U.S. 940, 90 S.Ct. 374, 24 L.Ed.2d 241 (1969); In re Bunting, 311 A.2d 855 (Del.1973); Johnson v. Johnson, 87 Nev. 244, 484 P.2d 1072 (1971). Respondents John and Lucia Revello attached the magistrate’s order of July 14, 1974, appointing them legal co-guardians of the two minor children to their “Return to Writ of Habeas Corpus” filed in the district court on November 30, 1977, asserting that the order constituted the legal basis for their custody of the two children. At the time of the habeas corpus hearing on November 30, and December 1, 1977, that order of co-guardianship, until properly terminated or modified by court order, gave the respondents the rights and responsibilities of custody over the two minor children. I.C. §§ 15-5-201 to -212. I.C. § 15-5-210 to -212 govern the procedures for termination or modification of an order of guardianship of a minor child. I.C. § 15-5-210 provides that the guardian’s authority and responsibility will terminate only “upon the death, resignation or removal of the guardian or upon the minor’s death, adoption, marriage or attainment of majority . .

The district court erred in failing to recognize the right to custody which the magistrate’s order of co-guardianship entered July 14, 1974, granted to respondents John and Lucia Revello. The magistrate’s order appointing respondents co-guardians of the two minor children, Shauna and Benjamin, is a binding adjudication that the best interests of the minor children would be served by the requested appointment. I.C. § 15-5-207(b); see Davis v. Davis, 253 Cal.App.2d 754, 61 Cal.Rptr. 297 (1967).

The Petition for Writ of Habeas Corpus filed by the natural mother in this case is an impermissible attempt to collaterally attack the order of guardianship issued by the magistrate’s court in July of 1974. This Court has on many occasions indicated that a habeas corpus proceeding cannot be used to obtain a general review of alleged errors committed by another court in a pri- or proceeding related to the person or persons whose custody is sought via a habeas corpus proceeding. In Stokes v. State, 90 Idaho 339, 411 P.2d 392 (1966), Justice McFadden quoted at length from the earlier decision of this Court in Ex parte Olsen, 74 Idaho 400, 263 P.2d 388 (1953), in indicating the proper inquiry to be undertaken in a habeas corpus action.

“If it appears that the court issuing the process by which the petitioner is held, had jurisdiction of the subject matter, jurisdiction of the person of the accused, and jurisdiction to make and issue the particular order or process by which the accused is held, and the order or process is valid on its face, he cannot be discharged by habeas corpus.

“Habeas corpus is not a corrective remedy, but is concerned only with defects in a proceeding which operate to render a judgment rendered or process issued, therein absolutely void. It cannot be invoked for use in correcting mere errors or irregularities in the proceedings of a trial court which are not jurisdictional and, at the most, render a judgment merely voidable. The writ of habeas corpus was neither intended to have nor does it have, the primary function of a proceeding for the review of errors committed by a trial court within its jurisdiction, and consequently, it does not have the force and effect of such a proceeding as an appeal, error proceeding, or writ of certiorari. The proper scope of the remedy of habeas corpus as a means of a collateral attack upon a judgment or process which is absolutely void is not to be distorted by an attempt to make the proceeding available as one in the nature of an appeal or error proceeding * * *. In other words, a writ of habeas corpus is not a writ of error or a writ in anticipation of error and cannot operate as, be converted into, or serve as a substitute for such writ * * * 74 Idaho at 402-03; 263 P.2d at 390.

A habeas corpus proceeding is not a substitute for an appeal or other revisory remedy. Dionne v. State, 93 Idaho 235, 459 P.2d 1017 (1969); Coffelt v. State, 92 Idaho 235, 440 P.2d 355 (1968); King v. State, 91 Idaho 97, 416 P.2d 44 (1966); Wilson v. State, 90 Idaho 498, 414 P.2d 465 (1966); Burge v. State, 90 Idaho 473, 413 P.2d 451 (1966).

This Court’s remarks concerning the scope of inquiry in a habeas corpus proceeding have occurred in actions brought by criminal defendants seeking to challenge the validity of their criminal convictions. However, the scope of inquiry in a habeas corpus proceeding in which petitioner seeks custody of a minor child is similarly limited where the custody issue has previously been considered by another court in the state.

“An order appointing a guardian for an infant is conclusive of the right of such guardian to the infant’s custody, until reversed by a direct proceeding, and it cannot be assailed in a collateral way by habeas corpus proceeding, except where the order is shown to be invalid, as for want of jurisdiction.” 39 C.J.S. Habeas Corpus, § 129 (1976).

In Weigel v. Grossnickle, 100 Ohio App. 106, 135 N.E.2d 894 (1954), it was held that an order appointing a guardian made by a probate court could not be impeached col-' laterally. The court held that where the petitioner in a habeas corpus action had an adequate remedy in the probate court which issued letters appointing guardians over the subject minor children and which had exclusive, continuing jurisdiction over the matters concerning the guardianship, the petitioner could not seek custody of the children in a habeas corpus proceeding in another court. The court held that “exclusive, continuing jurisdiction upon matters of custody rested in Probate Court, and appellant has an adequate remedy at law in that forum, so that the petition in habeas corpus was properly dismissed.” 135 N.E.2d at 896.

The limited scope of the inquiry to be undertaken by a habeas corpus court in a child custody dispute where custody has already been determined by an order of another court in the state is exemplified by Tree Top v. Smith, 577 F.2d 519 (9th Cir. 1978). There, the petitioner’s minor child had been adopted by others in an Idaho state court proceeding. Subsequent to the adoption the natural mother, petitioner, filed a petition for writ of habeas corpus in United States District Court in the District of Idaho in an attempt to regain custody of the child. The federal district court, Judge J. Blaine Anderson presiding, dismissed the petition. The Ninth Circuit Court of Appeals affirmed, stating that:

“The crux of [appellant-petitioner’s] petition relates to the merits of a custody dispute, and she had a full and fair opportunity to litigate those issues in the state court. Moreover, she had the statutory right to appeal the decree in the Idaho system. Under the circumstances, she is now bound by the state judgment and the federal court will not entertain her complaint merely because she has reframed the custody dispute as a petition for habeas corpus.” 577 F.2d at 521.

Our holding today is consistent with Wood v. District Court, 181 Colo. 95, 508 P.2d 134 (1973), in which the Colorado Supreme Court quashed a writ of habeas corpus in circumstances similar to those here. As the result of a divorce decree the mother in that case had been given custody of the children, and the father had subsequently filed a motion for change of custody. After having refused to redeliver one of the children to the mother at the end of a visitation period the father filed an original proceeding in habeas corpus seeking to obtain custody of the child. The Colorado Supreme Court noted that “the court in which the custody decree was issued has continuing jurisdiction over the matter of custody . of the children,” just as the magistrate’s court which issued the co-guardianship order in this case has continuing jurisdiction over the custody of the two children involved in this case. The Colorado Supreme Court then held that only the court which issued the custody decree could modify or change that order, and in a habeas corpus proceeding another Colorado court could only issue an order enforcing the decree of the court which had issued the original custody order. The Colorado Court reasoned:

“In the situation at bar where the original custody award and the subsequent habeas corpus proceeding are in the same state, but in different courts, other jurisdictions have held with persuasive reasoning that, although the habeas corpus court would not have jurisdiction to test the wisdom of or to modify the custody decree, it can and should make the writ permanent to enforce the decree and should order the child returned to the one lawfully entitled to custody. See Annot., 4 A.L.R.3d §§ 10 and 16. Any other disposition of the habeas corpus would result in a conflict of jurisdiction and produce confusion in the orderly process of the law.” 508 P.2d at 135.

See also State by St. Louis County Welfare Dept. v. Niemi, 284 Minn. 225, 169 N.W.2d 758 (1969); State ex rel. Dubinsky v. Weinstein, 413 S.W.2d 178 (Mo.1967); Warman v. Warman, 496 S.W.2d 286 (Mo.App.1973); In re Taylor, 421 S.W.2d 57 (Mo.App.1967); In re Barnes, 356 P.2d 363 (Okl.1960); Annot., 4 A.L.R.3d 1277, 1309-12 (1965).

In Andersen v. Crapo, 99 Idaho 805, 589 P.2d 957 (1978), this Court recently held that a petition for writ of habeas corpus could be utilized by the natural parents of a minor child to challenge the validity of an adoption decree obtained by the respondent Crapos. The petitioners in that case alleged that they had revoked their consent to the adoption prior to the consent being filed in the adoption proceeding, and that because their consent under Idaho law served as a notice and appearance in the adoption proceedings the adoption decree was void. A majority of this Court agreed, stating that the petitioners’ contention that they had revoked the consent to the adoption before the adoption occurred “is inextricably bound up with the Andersens’ counter argument on the merits, namely, that they withdrew their consent, were never parties to the proceedings since they were never served with notice, and that the adoption decree is therefore void.” 99 Idaho at 810, 589 P.2d at 962 (emphasis in original). This Court held that the effect of the petitioners’ revocation of their consent to the adoption was to vitiate the notice to the Andersens which procedural due process requires. The lack of such notice made the adoption order void and was properly raised by the petition for writ of habeas corpus. This result is consistent with the general rule, expressed above, that a habeas corpus proceeding is concerned only with defects in a proceeding which operate to render a prior judgment void.

In the case at bar, no questions concerning the validity of the guardianship order were raised in the habeas corpus proceedings below or have been disclosed on appeal.In fact the validity of the guardianship order affirmatively appears in the record.

The two minor children involved in this dispute resided in Bonneville County at the time this habeas corpus proceeding was commenced in November, 1977, and therefore, the magistrate division of the district court in Bonneville County was the only court with jurisdiction over any matters relating to the guardianship. See I.C. § 15-5-211(b).³ The district court should have denied appellant’s petition for writ of habeas corpus on the basis that the magistrate’s order appointing respondents co-guardians of the two minors gave custody of the persons of said minors to the respondents, and that the order could not be collaterally attacked in the habeas corpus proceeding.

We affirm the district court’s order quashing appellant’s petition for writ of habeas corpus for the foregoing reasons. Petitioner Patsy Revello is entitled under the provisions of the Uniform Probate Code to pursue her “petition to terminate co-guardianship” in the magistrate’s division which issued that order or, if the children no longer reside in Bonneville County, in the magistrate’s court in the county where the children reside. I.C. §§ 15-5-211 and —212. The magistrate’s order of guardianship is a valid final order of that court, however, and is not subject to a collateral attack in a habeas corpus proceeding in the district courts of this state.

Affirmed. Costs to respondent.

DONALDSON, C.J., and McPADDEN, J., concur.

1 . At oral argument counsel related that Patsy Revello had earlier undertaken to have John and Lucia Revello’s guardianship over Shauna and Benjamin terminated. Our review of the files in the Seventh Judicial District Court clerk’s office reveals that on September 28, 1977, Patsy filed a “Petition to Terminate Co-Guardianship” in the district court of Bonneville County. The record of the magistrate’s division of that court relating to the guardianship of the Revello children, however, indicates that no action was taken on the petition subsequent to filing it. Two months later Patsy filed this habeas corpus petition.

2 . “[I.C.] 32-1007. RIGHTS OF PARENTS OVER CHILDREN. — The father and mother of a legitimate unmarried minor child are equally entitled to its custody, services and earnings. li either the father or mother be dead or be unable or refuse to take the custody or has abandoned his or her family, the other is entitled to the child’s custody, services and earnings.”

3 . The official comment to I.C. § 15-5-211(b) provides:

“Under Section 1-302 [5-302], the Court is designated as the proper court to handle matters relating to guardianship. The present section is intended to give jurisdiction to the forum where the ward resides as well as to the one where appointment initiated. This has primary importance where the ward’s residence has been moved from the appointing state. Because the Court where acceptance of appointment is filed may as a practical matter be the only forum where jurisdiction over the person of the guardian may be obtained (by reason of Section 5-208), that Court is given concurrent jurisdiction.”