May v. Anderson

Mr. Justice Burton

delivered the opinion of the Court.

The question presented is whether, in a habeas corpus proceeding attacking the right of a mother to retain possession of her minor children, an Ohio court must give full faith and credit to a Wisconsin decree awarding custody of the children to their father when that decree is obtained by the father in an ex parte divorce action in a Wisconsin court which had no personal jurisdiction over the mother. For the reasons hereafter stated, our answer is no.

This proceeding began July 5, 1951, when Owen Anderson, here called the appellee, filed a petition for a writ of habeas corpus in the Probate Court of Columbiana County, Ohio. He alleged that his former wife, Leona Anderson May, here called the appellant, was illegally restraining the liberty of their children, Ronald, Sandra and James, aged, respectively, 12, 8 and 5, by refusing to deliver them to him in response to a decree issued by the County Court of Waukesha County, Wisconsin, February 5, 1947. With both parties and their children before it, the Probate Court ordered that, until this matter be finally determined, the children remain with their mother subject to their father’s right to visit them at reasonable times.

After a hearing “on the petition, the stipulation of counsel for the parties as to the agreed statement of facts, and the testimony,” the Probate Court decided that it was obliged by the Full Faith and Credit Clause of the Constitution of the United States¹ to accept the Wisconsin decree as binding upon the mother. Accordingly, proceeding to the merits of the case upon the issues presented by the stipulations of counsel, it ordered the children discharged from further restraint by her. That order has been held in abeyance and the children are still with her. The Court of Appeals for Columbiana County, Ohio, affirmed. 91 Ohio App. 557, 107 N. E. 2d 358. The Supreme Court of Ohio, without opinion, denied a motion directing the Court of Appeals to certify its record for review, and dismissed an appeal on the ground that no debatable constitutional question was involved. 157 Ohio St. 436, 105 N. E. 2d 648, 25 Ohio Bar 199.

On appeal to this Court, we noted probable jurisdiction. Inasmuch, however, as neither the Court of Appeals nor the Supreme Court of Ohio relied upon the Ohio statute alleged to be the basis of the appeal, we have treated the appeal as a petition for a writ of certiorari, granted pursuant to 28 U. S. C. (Supp. V) § 2103, while continuing, for convenience, to refer to the parties as appellant and appellee.²

The parties were married in Wisconsin and, until 1947, both were domiciled there. After marital troubles developed, they agreed in December, 1946, that appellant should take their children to Lisbon, Columbiana County, Ohio, and there think over her future course. By New Year’s Day, she had decided not to return to Wisconsin and, by telephone, she informed her husband of that decision.

Within a few days he filed suit in Wisconsin, seeking both an absolute divorce and custody of the children. The only service of process upon appellant consisted of the delivery to her personally, in Ohio, of a copy of the Wisconsin summons and petition. Such service is authorized by a Wisconsin statute for use in an action for a divorce but that statute makes no mention of its availability in a proceeding for the custody of children.³ Appellant entered no appearance and took no part in this Wisconsin proceeding which produced not only a decree divorcing the parties from the bonds of matrimony but a decree purporting to award the custody of the children to their father, subject to a right of their mother to visit them at reasonable times. Appellant contests only the validity of the decree as to custody. See Estin v. Estin, 334 U. S. 541, and Kreiger v. Kreiger, 334 U. S. 555, recognizing the divisibility of decrees of divorce from those for payment of alimony.

Armed with a copy of the decree and accompanied by a local police officer, appellee, in Lisbon, Ohio, demanded and obtained the children from their mother. The record does not disclose what took place between 1947 and 1951, except that the children remained with their father in Wisconsin until July 1, 1951. He then brought them back to Lisbon and permitted them to visit their mother. This time, when he demanded their return, she refused to surrender them.

Relying upon the Wisconsin decree, he promptly filed in the Probate Court of Columbiana County, Ohio, the petition for a writ of habeas corpus now before us. Under Ohio procedure that writ tests only the. immediate right to possession of the children. It does not open the door for the modification of any prior award of custody on a showing of changed circumstances. Nor is it available as a procedure for settling the future custody of children in the first instance.

“It is well settled that habeas corpus is not the proper or appropriate action to determine, as between parents, who is entitled to the custody of their minor children.

“The agreed statement of facts disclosed to the Court of Appeals that the children were in the custody of their mother. There being no evidence that the appellant had a superior right to their custody, that court was fully warranted in concluding that the children were not illegally restrained of their liberty.” In re Corey, 145 Ohio St. 413, 418, 61 N. E. 2d 892, 894-895.⁴

The narrow issue thus presented was noted but not decided in Halvey v. Halvey, 330 U. S. 610, 615-616. There a mother instituted a suit for divorce in Florida. She obtained service on her absent husband by publication and he entered no appearance. The Florida court granted her a divorce and also awarded her the custody of their child. There was, therefore, inherent in that decree the question “whether in absence of personal service the Florida decree of custody had any binding effect on the husband; . . . Id., at 615. We were not compelled to answer it there and a decision on it was expressly reserved.

Separated as our issue is from that of the future interests of the children, we have before us the elemental question whether a court of a state, where a mother is neither domiciled, resident nor present, may cut off her immediate right to the care, custody, management and companionship of her minor children without having jurisdiction over her in personam. Rights far more precious to appellant than property rights will be cut off if she is to be bound by the Wisconsin award of custody.

“[I]t is now too well settled to be open to further dispute that the 'full faith and credit’ clause and the act of Congress passed pursuant to it⁵ do not entitle a judgment in personam to extra-territorial effect if it be made to appear that it was rendered without jurisdiction over the person sought to be bound.” Baker v. Baker, Eccles & Co., 242 U. S. 394, 401, and see 403; Thompson v. Whitman, 18 Wall. 457; D’Arcy v. Ketchum, 11 How. 165.

In Estin v. Estin, supra, and Kreiger v. Kreiger, supra, this Court upheld the validity of a Nevada divorce obtained ex parte by a husband, resident in Nevada, insofar as it dissolved the bonds of matrimony. At the same time, we held Nevada powerless to cut off, in that proceeding, a spouse’s right to financial support under the prior decree of another state.⁶ In the instant case, we recognize that a mother’s right to custody of her children is a personal right entitled to at least as much protection as her right to alimony.

In the instant case, the Ohio courts gave weight to appellee’s contention that the Wisconsin award of custody binds appellant because, at the time it was issued, her children had a technical domicile in Wisconsin, although they were neither resident nor present there.⁷ We find it unnecessary to determine the children’s legal domicile because, even if it be with their father, that does not give Wisconsin, certainly as against Ohio, the personal jurisdiction that it must have in order to deprive their mother of her personal right to their immediate possession.⁸

The judgment of- the Supreme Court of Ohio, accordingly, is reversed and the cause is remanded to it for further proceedings not inconsistent with this opinion.

Reversed and remanded.

Mr. Justice Clark, not having heard oral argument, took no part in the consideration or decision of this case.

1 “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” Art. IV, § 1.

2 The state statute alleged to have been drawn in question by appellant as repugnant to the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States was § 7996 of the Ohio General Code of 1910 providing that “The husband is the head of the family. He may choose any reasonable place or mode of living, and the wife must conform thereto.” The Probate Court was said to have upheld that section as establishing the legal domicile of the children with their father and, on that basis, to have upheld the Wisconsin decree as validly depriving their mother of her custody over her children, although the Wisconsin court never obtained personal jurisdiction over her.

3 “262.12 Publication or service outside state, when permitted. When the summons cannot with due diligence be served within the state, the service of the summons may be made without the state or by publication upon a defendant when it appears from the verified complaint that he is a necessary or proper party to an action or special proceeding as provided in Rule 262.13, in any of the following cases:

“(5) When the action is for a divorce or for annulment of marriage.

“262.13 Publication or service outside state; . . . mode of service.

“ (4) In the cases specified in Rule 262.12 the plaintiff may, at his option and in lieu of service by publication, cause to be delivered to any defendant personally without the state a copy of the summons and verified complaint or notice of object of action as the case may require, which delivery shall have the same effect as a completed publication and mailing. . . .” Wis. Stat., 1949.

4 This limitation contrasts with the procedure in states where a court, upon securing the presence before it of the parents and children in response to a writ of habeas corpus, may proceed to determine the future custody of the children. See e. g., Halvey v. Halvey, 330 U. S. 610 (New York procedure); Boor v. Boor, 241 Iowa 973, 43 N. W. 2d 155; Helton v. Crawley, 241 Iowa 296, 41 N. W. 2d 60.

5 See 28 U. S. C. (Supp. V) § 1738, as developed from the Act of May 26,1790,1 Stat. 122.

6 “. . . The fact that the requirements of full faith and credit, so far as judgments are concerned, are exacting, if not inexorable (Sherrer v. Sherrer, supra [334 U. S. 343]), does not mean, however, that the State of the domicile of one spouse may, through the use of constructive service, enter a decree that changes every legal incidence of the marriage relationship.

“The result in this situation is to make the divorce divisible — to give effect to the Nevada decree insofar as it affects marital status and to make it ineffective on the issue of alimony.” 334 U. S., at 546, 549.

7 By stipulation, the parties recognized her domicile in Ohio. See also, Estin v. Estin, supra; Kreiger v. Kreiger, supra; Williams v. North Carolina, 317 U. S. 287.

For the general rule that in cases of the separation of parents, apart from any award of custody of the children, the domicile of the children is that of the parent with whom they live and that only the state of that domicile may award their custody, see Restatement, Conflict of Laws (1934), §§32 and 146, Illustrations 1 and 2.

8 “. . . the weight of authority is in favor of confining the jurisdiction of the court in an action for divorce, where the defendant is a non-resident and does not appear, and process upon the defendant is by substituted service only, to a determination of the status of the parties. . . . This rule of law extends to children who are not within the jurisdiction of the court when the decree is rendered, where the defendant is not a resident of the state of the seat of the court, and has neither been personally served with process nor appeared to the action. . . . [Citing cases.]

“By the authority of the cases supra, a decree of the custody of a minor child under the circumstances stated is void.” Weber v. Redding, 200 Ind. 448, 454-455, 163 N. E. 269, 271. See also, Sanders v. Sanders, 223 Mo. App. 834, 837-838, 14 S. W. 2d 458, 459-460; Carter v. Carter, 201 Ga. 850, 41 S. E. 2d 532.

The instant case does not present the special considerations that arise where a parent, with or without minor children, leaves a jurisdiction for the purpose of escaping process or otherwise evading jurisdiction, and we do not have here the considerations that arise when children are unlawfully or surreptitiously taken by one parent from the other.