Commonwealth ex rel. Sage v. Sage , 160 Pa. 399 ( 1894 )

Opinion by

Mr. Justice Williams,

The writ of habeas corpus in this case seems to have been resorted to as an extradition proceeding, and to have been treated as such throughout. The relator is a resident of New Jersey. His wife, the respondent, and their infant daughter, now about ten years old, resided with him in that state, until their separation in January, 1893. Each accuses the other of abandonment, and of having brought about the separation. After four months, the relator, without having contributed anything towards the support of his wife and child meantime, comes into Pennsylvania for the purpose of taking the daughter from her mother by asserting his legal right to her custody under the laws of New Jersey. If he has such legal right, it is his duty to show it in the forum into which he conies; and if there is any reason why that right ought not now to be asserted, the respondent may properly set it up in her return to the writ. If an issue of law, or of fact, is thus raised, it must be heard and decided in the court out of which the writ issued. If the right asserted is found to exist, and no sufficient reasons are shown for refusing to enforce it, the court will award the custody of the child accordingly, and the relator will be permitted to withdraw it from the jurisdiction of the court making the decree. But if the right alleged is not shown to exist, or if, being shown, it appears on all the evidence to have been parted with by agreement, or forfeited by misconduct, or to be one that, for the sake of the child, ought not to be enforced, the court will decline to interfere and the writ will be dismissed, or a decree made formallj' awarding the custody to the respondent.

In this case the writ was made returnable on the 12th day of May. On that day the hearing was continued till the 19th. It was then again continued; but on the following day one of the counsel for the relator came into court with a suggestion signed by himself and not sworn to by any one, in which he recited an order made by the learned judge of the court below, requiring the respondent anda relative with whom she boarded, by the name of Sherman, to take the child Joyce Sage into the state of New Jersey “for the purpose of having a writ of habeas corpus served upon them, as all parties being domiciled in New Jersey, were subject to the jurisdiction of the courts of New Jersey.” He further recited a promise to obey the order so made, and a neglect, by the respondent and Sherman, to obey the “orders and mandate of this court;” and concluded with a prayer for an attachment against both. Without any rule to show cause, or notice to the parties whose liberty was at stake, an attachment was immediately issued, on which an arrest was made, from which the parties were relieved on the 22d day of May by giving bail in the sum of fifteen hundred dollars each. The order for the attachment is quite as unique as the petition. It recites that “It appearing by the record that the respondent Hettie Sage and one George W. Sherman, is in contempt; and it also appearing that Charles H. Sage has moved for an attachment against the said Hettie Sage and George W. Sherman for said contempt,” and that verbal notice has been given to respondent’s counsel that an attachment would be moved for; and upon this basis it directs an attachment to issue, and that Hettie Sage and George W. Sherman be brought forthwith into court to answer for said contempt.

Now the record does not show that these parties were in contempt, or were even charged with contempt. The petition recites an order upon the respondent to take the child into New Jersey and submit her right to its custody to the courts of that state, but neither the docket entries nor the files show the existence of such an order. It was never made. The court had no legal right to make it. The respondent would have been guilty of no contempt for disregarding it, if it had been made.

The courts can in a proper case surrender an alleged criminal to the courts of a sister state for trial, but they cannot compel a resident of Pennsylvania to go into another state and submit himself to the jurisdiction of its tribunals by an attachment. Whether the order set out in the petition was actually made or not is therefore a matter of no consequence. If it was made, it was a nullity. If it was not made, then there is no foundation for the charge of contempt; so that in either event the attachment must be set aside and all that has been done under it must fall.

But a final decree was made on the 14th day of June, 1893, awarding the custody of this child to her father, and the remaining question is whether this decree should stand.

The record shows .that the respondent made her answer or return to the writ on the same day on which she' was relieved from the custody of the sheriff by entering bail. Three days later, which was the 25th day of May, the relator made a formal traverse of the answer. Issues of fact were thus made up for trial and determination by the court below. If the facts stated in the answer were true, the relator was unfit to have the custody of his child. If they were false, he was entitled to such custody. A decree should have rested on a determination of this issue, but the decree before us did not. It set forth the admission by counsel that both parties had been previously domiciled in New Jersey and that the relator continued to reside there; that no guardian had been appointed for the child; that the relator was, by the laws of the state of New Jersey, the natural guardian; and “in order that the court may show the consideration due to the law of another state of this Union, and without passing upon the question of the true domicile of the respondent, whether in Pennsylvania or with her husband in New Jersey, and without passing upon the fitness of the petitioner to act as guardian of the child,” it directed that the child be remanded to the custodj' of the petitioner, and that the mother must go into another state to have the question of his fitness considered and determined. We recognize the demands of comity, and our courts should be, as they are, always ready to accede to them; but comity requires of us that we administer the laws of another state between suitors in our own courts whenever this becomes necessary to the proper administration of justice in the particular case. It does not require us to dismiss the parties with directions to proceed to Maine or California or some other state, in which the contract was made, or the parties were domiciled, so that the law of a given state may be administered, by the courts of that state; but simply that we shall apply the same rule that the courts of the proper state would apply. This was all that comity required of the court below in this case.

The return to the writ of habeas corpus, and the traverse thereof bj the relator, raised no question under the law of New Jersey. If they had done so, and the rule in that state differed from ours on the question so raised, the court should have followed the New Jersey rule. But the question raised on the record was one of fact. The validity of the marriage under the laws of New Jersey was not denied. It was not denied that the relator was the father of Joyce Sage, nor that under the laws of New Jersey he was her natural guardian. But conceding all this, the respondent denied that he was a fit person to have the custody of this young girl. This was the only question before the court below, and it was the legal right of the respondent to insist on its decision before her young daughter should be taken from her. If her contention was sustained, then, under the laws of New Jersey as well as the laws of Pennsylvania, she was entitled to retain the child: Bennet v. Bennet, 2 Beas. 114; Commonwealth v. Addicks, 5 Bin. 520; Commonwealth v. Smith, 1 Brewster, 548. The legal right of the father must yield to considerations affecting the welfare of the child. The present condition and the future prospects and advantage of the child should be considered; and where the child is of sufficient intelligence, its preferences and attachments should be consulted before the question of its custody is determined.

The decree committing Joyce Sage to the custody of the relator does not rest on a determination of any question that was before the court below, and for that reason it must be reversed at the cost of the relator. The record is remitted with a direction that the case be heard upon the issue made up by the return to the writ and the formal traverse of the same.