In re Fore

151 N.E.2d 777, 79 Ohio Law. Abs. 15, 1958 Ohio App. LEXIS 910

• Court: Ohio Court of Appeals
• Decided: July 10, 1958
• Docket: No. 24536
• Status: Published

Opinions

OPINION

By SKEEL, PJ.

This is an action invoking the original jurisdiction of the court wherein a petition has been filed seeking a writ of Habeas Corpus for the immediate release of Donald Peter Fore to the custody of the relator. The facts are not in serious dispute. The relator is the paternal grandmother of Donald Peter Fore, a minor of three years of age. She is a resident of Winnsboro, Louisiana. She is seventy-seven years of age. The respondent is now, and has been since her marriage to William Toth in 1954. a resident of Cleveland. She is a citizen of Germany and has not yet petitioned for United States citizenship. Donald Peter Fore is the son of Donnie Ray Fore and Franziska Anna Fore, now deceased, both parents having died in a common accident in Ingrandes, France, September 7, 1957. The respondent is the sister of Franziska Anna Fore.

Donnie Ray Fore was born in Winnsboro, Louisiana, December 19, 1922. He enlisted in the Army of the United States on July 8, 1941, and was continuously in the Military Service from that time until his death. His last enlistment was on May 3, 1956. The place of this enlistment, as indicated by the military records, was Ingrandes, France, where he was then stationed. In this enlistment, as in all previous enlistments, he gave his home address as Winnsboro, Louisiana. Donnie Ray Fore during his military service, attained the rank of Master Sergeant and at the time of his death on September 7, 1957, was serving in the Quartermaster’s Depot, Ingrandes, France. Sergeant Donnie Ray Fore was married in Goeggingen, Germany, August 6, 1952. Donald Peter Fore was born in the Military Hospital at Fort Lee, Virginia, on October 10, 1954.

Immediately after the death of Sergeant Donnie Ray Fore and his wife, Donald Peter Fore was cared for by the family of Master Sergeant Gross until October 24, 1957, when the respondent, who had flown to Germany after receiving notice of her sister’s death on September 14, 1957 (notice having been received from Mrs. W. C. Lee, sister of Donnie Ray Fore, who lived in Louisville, Mississippi), took possession of the child from an army officer. The respondent was then at the home of her parents in Germany.

After the respondent obtained possession of the infant, Donald Peter Fore, from the army representative, she brought him to the United States on November 18, 1957. Upon arrival in New York, she was served with a petition seeking a writ of Habeas Corpus for the release of the infant. This proceeding was instituted there by Ida Fore Tillery, a resident of Mississippi and who was a paternal aunt of Donald Peter Fore. The record shows that the writ was denied on November 25, 1957.

The respondent then brought Donald Peter Fore to Cleveland, Ohio, where he has since been maintained in her household.

On December 2, 1957, the respondent filed an application for letters of guardianship, alleging that the parents of Donald Peter Fore, aged three, October 10, 1957, residing at 9006 Laisy Avenue, Cleveland, Ohio, were deceased, and naming the maternal grandparents in Germany and this relator, Ella Fore, paternal grandparent, residing in Louisiana, as next of-kin. The application shows that the applicant (respondent here) is the maternal aunt and that the minor’s property consists of government insurance on the life of the deceased father. This application was granted forthwith without notice to anyone and letters of guardianship issued upon posting a bond in the sum of $4,000. The probate file discloses a letter from a lawyer in Germany, employed by respondent to assist her in getting possession of the child, advising immediate action in securing an order of guardianship in the Probate Court of the respondent’s residence, which letter included a copy of the journal of the Supreme Court of New York, County of Queens, dismissing the application for a writ of Habeas Corpus.

On April 11, 1958, the relator filed a petition in the Fifth District Court, Parish of Franklin, Louisiana, seeking an order of “tutorship” of the person of Donald Peter Fore and the right to the effects of said minor under the Law of Louisiana. The petition sets out that Ella Vernon Fore (relator herein) is a resident of the Parish of Franklin, State of Louisiana; that she is the mother of Donald (Donnie) Ray Fore, the father of the minor here concerned; that the father and mother of said minor died in a common accident in France where the father was serving as a member of the Army of the United States; that he had been a member of the Armed Forces of the United States since 1941; that his home and domicile when he entered the Armed Services was the Parish of Franklin, Louisiana, where it has remained ever since and until his death, and that the domicile of the minor continued after the death of his parents in the Parish of Franklin and State of Louisiana.

Some reference in this petition is made to the fact that after being consulted by the Army concerning the child after the death of its parents, she consented to an application being made by Ida Fore Tillery, a sister of the deceased, Donald Ray Fore, to seek guardianship of such minor, which application was filed October 18, 1957, in the Fourth Chancery District Court of Mississippi, and decree entered by that court appointing Ida Fore Tillery Guardian. It is also set out in said petition that on October 25, 1957, the United States Army wrongfully delivered physical possession of Donald Peter Fore to the respondent who was then in Germany and that she brought said infant to Cleveland, Ohio, where she now has physical possession of such child and wrongfully refuses to deliver the child to the petitioner.

Upon hearing of the relator’s petition for “tutorship” on April 11. 1958, the court appointed Ella Vernon Fore, guardian of said minor, Donald Peter Fore, as is shown by the record of such proceedings introduced in evidence in this case.

From the evidence, there can be no question, but that the domicile of Donnie Ray Fore was Winnsboro, Parish of Franklin, Louisiana, during his entire life. This was his domicile when he enlisted in the United States Army and there is no evidence that he, at any time during his sixteen years of service prior to his death, ever signified an intent to change such domicile.

In Vol. 18, page 171, Sec. 17, O. Jur. 2d, under the title “Domicile.” it is said:

“* * * Absence from home for years, where at the time of leaving there was an intention to return, does not, unless in the meanwhile that intention was destroyed by some unequivocal act signifying a purpose to change the domicile, defeat one’s right to claim his former residence as if it had never been interrupted by his absence. On no other principle could there be secured to officers in the Army and Navy on duty, public officials abroad and travelers in foreign parts, the right to enjoy on their return the privilege of voting where they had always resided or to claim the protection of their property from unlawful seizure in their absence. * * *” : ; ■■ 1 a-Ávi^¡

In the case of Glassman v. Glassman, 75 Oh Ap 47, 60 N. E. 2d 716, the court said in the second paragraph of the syllabus:

“2. The domicile of a person entering the armed forces of the United States remains the same throughout service in such forces unless a new domicile is voluntarily selected by such person.”

On the facts of the case just cited, the rule set forth in paragraph four of the syllabus is not applicable here. The general rule is that where the husband has a fixed domicile, recognized as such, the wife’s domicile is that of her husband.

The facts are very clear that the respondent set out while still in Germany to keep Donald Peter Fore as her child regardless of the wishes of other members of the family, even as to those who under the law of the state of the child’s domicile would have a prior right to such protective custody. The child’s domicile was unquestionably in the Parish of Franklin, Louisiana, U. S. A., at the time of and since the death of his parents which occurred in a common accident while his father was in the Armed Services. This is true for two reasons, first because a minor’s domicile is that of his father and second because courts hold that an infant takes the domicile of his paternal grandparents upon the death of both parents. See Lehmer v. Hardy, et al., 294 Fed. 407.

The claim that the court is acting on behalf of the State of Ohio as “parens patriae” under which theory mere residence of the child within the state would suffice to give the judge jurisdiction to adjudicate what is for the best interests of the child is not applicable here. The respondent brought the child here seeking the protection of this state in her attempt to keep the exclusive custody of the child for her own purposes. There has been as yet no contest as to what is for the best interests of the child, nor could such question be litigated in this state on the undisputed facts here presented Does the respondent suggest that the state of the child’s domicile, Louisiana, is incapable of seeing to its welfare? Does the respondent seek, should disaster again strike, to burden this state with the continued care of the child or would she then attempt to surrender his custody to the sate of his domicile? The suggestion that the relator, being seventy-seven years of age, is incapable of caring for the child, is not supported by the record in this case. The facts are that Ella Pore has raised nine children and one grandchild, some of whom have had very acceptable army careers.

In 4 A. L. R. 2d, beginning at page 7, is an annotation to the case of Wicks v. Cox, 208 S. W. 2d 876. On page 14, in dealing directly with the question here presented, it is said:

“Another theory which guides the courts’ thinking is that a custody award affects the status of the child — a permanent relationship, jurisdiction over which is in the court of the state of the child’s domicil, and'in that court only. Courts for support of this theory often cite and quote 2 Beale, Conflict of Laws, para. 144.3, where it is said: ‘Since custody of a child by one parent carries with it domicil and a domestic status, jurisdiction to give the child to one parent or the other depends in principle on the domicil of the child; and a state which is the temporary residence of the child, not the domicil, cannot confer the right to custody. A fortiori a decree for custody rendered in a state where the child is neither resident nor domiciled is void for lack of jurisdiction.’ This view is supported in the American Law Institute, Restatement, Conflict of Laws, para. 117 and 145-148. Theoretically, it would seem that the court of the child’s domicil should have power to determine its custody, since that sovereign is especially interested in the child’s welfare. 24 Harv. L. Rev. 142.”

In the case here being considered, it must be remembered that the controversy is not between parents. As is indicated in the annotation just cited, many times in disputes between husband and wife or in protecting an abandoned child, residence is sufficient to vest a court with jurisdiction. The legal right to the custody or the responsibility for the support and care of Donald Peter Fore as between the remaining members of his family has never been the subject of an action before a court of competent jurisdiction. The respondent just took the child without legal right or authority and with total indifference to all others equally entitled or with prior right to be considered in a proper action to be adjudged the guardian of such minor child.

The statute of Ohio authorizing the appointment of guardians is §2111.02 R. C. This section circumscribes the authority of the courts of this state in making such appointment to cases where the ward is “a resident of the county or has a legal settlement therein.” There is no claim here that Donald Peter Fore had a “legal settlement” in Cuyahoga County nor. do the facts justify a determination that he was, when the action was commenced, a resident of this state. The respondent had no authority to establish a residence here for such minor. In the case entitled In the Matter of the Petition for the Appointment of a General Guardian of Maude and Mabel Hubbard, Infants, 82 N. Y. 90, the court said in the headnotes:

“The Supreme Court has no jurisdiction to appoint a guardian for an infant where the infant is not within the jurisdiction, or domiciled there, and has no property therein.

“It seems, that if an infant is a resident within the jurisdiction, although not domiciled and having no property there, the court has power to appoint a guardian; so, also, property gives jurisdiction to appoint a guardian thereof, although the infant is out of the jurisdiction and a resident abroad.

“The bringing of an infant, however, into this State by stratagem for the purpose of giving jurisdiction, will not avail.

“On application for the appointment of a guardian for two infants, it appeared that the legal domicile of their father was in Rhode Island. One of them was, at the time of the application, in that State, and the other had been, a few days prior to that time, secretly taken without the knowledge of her father or her relatives from Rhode Island, and brought into this State for the purpose of bringing her within the jurisdiction of the court, and in aid of the proceedings. Neither of the infants had any property in this State. The Special Term appointed a guardian residing in this State; the General Term, on appeal, reversed the order and appointed a resident of Rhode Island as guardian. Held, that both appointments were erroneous; that the legal domicile of the infants was in Rhode Island, as the domicile of the father was the domicile of his infant children; and that the Supreme Court had no jurisdiction."

And in the case of Lehmer v. Hardy, et al., 294 Fed. 407, it is said in the headnotes:

“1. Where the maternal and the paternal grandparents of a minor, whose parents had been killed, resided in New York, a decree of the Supreme Court of the District of Columbia purporting,' under Code D. C. §150, to appoint a guardian of such minor’s person rendered in her absence without notice, held void, though the District of Columbia had been the domicile of her parents.

“2. Upon the death of a minor’s parents, the paternal grandfather becomes her natural guardian, and by virtue of the fact that he then stands in loco parentis he has the right to change or fix the minor’s domicile

“3. A minor, like any other person, is entitled to the protection of the laws of the state or territory in which he abides.”

and on page 411, the court said:

“3. Let that be as it may, however, we are quite convinced that the courts oí the District of Columbia have no authority to appoint guardians of the persons of infants who do not reside and are not domiciled within their territorial jurisdiction A minor, like any other person, is entitled to the protection of the laws of the state or territory in which he abides, and it seems to be well-settled that only the courts of the domicile have jurisdiction to appoint a guardian of the person of a minor. Wharton on Conflict of Laws, 259; Harding v. Weld, 128 Mass. 590, 591; In re Benton, 92 Iowa, 202, 60 N. W. 614, 54 Am. St. Rep. 546; In the Matter of Hubbard, 82 N. Y. 90; Lamar v. Micou, 112 U. S. 470, 5 Sup. Ct. 221. 28 L. Ed. 751.”

In the case of Shorter v. Williams, 74 Ga. 539, the syllabus provides:

“Where application was made for the guardianship of certain minors ip, the county where their father had lived and died, and where they were then domiciled, the court of ordinary thereby acquired jurisdiction to hear, determine and grant letters of guardianship for their persons and property; and this jurisdiction could not be divested or rendered nugatory by the removal of the minors to the state of Alabama by their sister, and the grant of letters of guardianship to another by the probate court of that state, pending the application in Georgia.”

See also Munday v. Baldwin, 79 Ky. 121.

The many cases on this subject, while not based on identical facts as are here presented, hold under similar circumstances that the domicile of an infant is that of its parents; that upon the death of both parents, the paternal grandfather, or if not living the paternal grandmother, becomes the natural guardian of a minor child; that such natural guardian has the power on thé death of both parents to change the domicile of a minor grandchild to that of his own, and a court of another jurisdiction has no power to oust the prior right of the court of the domicile of the infant thus situated from determining what is for the child’s best interest and appointing a fiduciary of the infant’s person and estate. Nor can the court of another jurisdiction take away the right of the paternal grandparent who, upon the death of both parents, stands in loco parentis to such child.

Here both parents were killed in a common accident in France only a very short time before the proceedings herein were commenced. The respondent got possession of the infant in Germany from an army officer. She is a maternal aunt. There are also two paternal aunts of equal standing in the United States, one being the relator in the unsuccessful proceeding in Habeas Corpus filed in New York when the child arrived in this country in the possession of the respondent, and who had an order of guardianship for the minor issued in a proceeding in the courts of Mississippi prior to the New York case. The dismissal of the petition for a writ of habeas corpus in the New York case (although the record is silent on the question) could have been for the same reason that the respondent should not prevail here. That is, the authority depended on as the basis for seeking custody was not from the state of the child’s domicile. The person nearest in consanguinity in the United States is the relator in this action. She is the paternal grandmother and a resident of, and holds a decree granting her the right of “Tutorship” of the child from the courts of the Parish and State of his domicile. Such court is the only judicial tribunal authorized to determine, under the facts in this case, the right of the custody of Donald Peter Fore.

From the foregoing facts, it is clear that the custodial order of the Probate Court of Cuyahoga County dependent on by the respondent was void when made for want of jurisdiction of the cause of action and of no legal effect and the writ here prayed for should issue.

KOVACHY, J, concurs. HURD, J, dissents.