Opinion
04-27-1907
DIXON v. DIXON.
R. V. Lindabury, for petitioner. Gilbert Collins, for defendant
Petition by William H. Dixon against Josephine T. Dixon for the modification of a judgment relating to the custody of certain children. Continued for further hearing.
R. V. Lindabury, for petitioner. Gilbert Collins, for defendant
STEVENS, V. C. On June 1, 1905, William H. Dixon, the petitioner, filed his petition in this court, alleging that he and the defendant were married on January 30, 1901, in the city of New York, and that they lived together in that city until May 3, 1904, when his wife left him and went to live at her father's residence there; that they have two children, viz., William P., born March 19, 1902, and Barbara W., born April 30, 1903; that on June 8, 1904, the defendant took the children to Madison, in this state, to live with her in a house provided by her father, at which place she had resided ever since. The petition alleged the father's willingness to provide for her children, and stated that he had difficulty in obtaining access to them. The prayer was for a writ of habeas corpus, to the end that an order might be made awarding their custody to the petitioner for the whole or a portion of the time, or for such other order with respect to their care and custody as should be just. The defendant answered, denying that her father was a resident of New York, and averring that he had for several years been a citizen of New Jersey, with a home at Madison, where he resided during the greater portion of each year. She denied that she and petitioner had lived in the city of New York up to May 3, 1904, and averred that they had lived together in Madison during the summer of 1901, and that in May, 1903, petitioner having gone away for his health, she and her children had gone to her father's house, in that town, and that in September, 1903, she and the petitioner, together with her children, after remaining a few days at her father's house in Madison, had taken possession of a neighboring house there, where they had continued to reside during the winter, and that she and her children had continued to live there ever since, except for a short interval. It will thus be seen that at the commencement of the proceeding and for two years prior thereto the defendant and her children had been residents of New Jersey. To theanswer petitioner filed a replication and the case was heard on the merits. The court decreed as follows: "It is on this 3d day of August, 1905, on motion of Collins & Corbin, solicitors of defendant, ordered that the prayer of the petitioner to have the custody of the children in the writ named, to wit, William H. Dixon, Jr., and Barbara Dixon, be denied with costs. And it is further ordered that the petitioner shall be permitted to visit said children once in each week while living in Morristown, at such convenient time and place as the parties may agree, and that, when the said children are living in New York, they shall be taken at least once in each week for a reasonable time, at such convenient hour during the day as the petitioner may desire, to the house of the parents of the petitioner. Either party may apply to this court for further direction as there may be occasion." The petitioner appealed from this decree and on December 3, 1906, it was affirmed by the Court of Errors and Appeals. Its correctness and propriety in all its parts is therefore beyond controversy.
On February 13, 1907, William H. Dixon filed a supplemental petition, stating most of the foregoing facts, and alleging that he had been permitted to have access to his children pursuant to the terms of the order up to Saturday, January 26, 1907, but that on the 8th day of February, 1907, he was notified by her father that defendant had "moved" from Madison to Portland, and, on February 11th, that his wife and children were at the Lafayette Hotel, in that city. The first letter stated that it would be convenient (to Mrs. Dixon) that Mr. Dixon should see the children there, by appointment, as usual. The petitioner states that he is engaged in business in the city of New York, and that all his time is occupied therein except Saturday afternoons, and that it would be quite impossible for him to make weekly or even frequent visits to Portland. The prayer is that, if Mrs. Dixon is desirous of living in Portland, she should not be permitted to keep the children there, and that she should be directed to return them either to the city of New York or to the state of New Jersey, with an alternative prayer that the custody of the children should be awarded to him. An order to show cause why the prayer of the petitioner should not be granted was made upon the filing of the petition. It, with a copy thereof, was personally served upon the defendant in Portland. She appeared by counsel on the return day and opposed the making of any further order, but did not file an answer or make any statement with reference to her future plans. She insisted, by counsel, in addition, that the court was without jurisdiction to make any further order in the premises, inasmuch as it appeared that none of the parties were at present within the Jurisdiction of the court. There is no proof on the part of Mrs. Dixon that she is not a resident of New Jersey. Mr. Dixon's allegation in that regard is not that his wife had ceased to be a resident, but that he has been informed by a letter written by defendant's father in New York that his daughter had "moved" from New York to Portland. It does not appear that Mr. Williams was authorized by his daughter to bind her to this statement. The word "moved" is somewhat indefinite. It may or may not, according to circumstance, warrant the inference of a permanent change of residence on her part. But, if it be assumed that she has changed her residence, I am still of the opinion that the court has jurisdiction to modify its previous order. The wife's answer in the original proceeding demonstrates that she and her children were then residents of New Jersey. The proceeding was not a pure common-law habeas corpus proceeding—a proceeding which either terminated or continued the restraint and so ended—but a proceeding "before the Chancellor under his general power to superintend the affairs of infants and to provide who shall permanently have the custody of them during minority." Rossell v. Rossell, 64 N. J. Eq. 22, 53 Atl. 821; State (Baird) v. Baird, 19 N. J. Eq. 481; Buckley v. Perrine, 54 N. J. Eq. 285, 34 Atl. 1054; Id., 55 N. J. Eq. 515, 36 Atl. 1088.
The proceeding by petition in a case where the parents are living separately is expressly authorized by section 8 of the act of 1902, respecting minors. P. L. p. 263. The petition in this case is entitled in the Court of Chancery, and it prayed the appropriate process of habeas corpus in order to bring the infants before the court. This writ might have issued in such a proceeding prior to the act of 1902 (State [Baird, Pros.] v. Baird, 19 N. J. Eq. 481, 487), but it is expressly authorized by section 12. It is also provided in express terms by section 10 that the court may make the necessary orders from time to time in relation to the custody or possession. The situation, then, is this: A proceeding was instituted, whose scope was the permanent custody of two minor children, and it was so instituted under the general jurisdiction of the Court of Chancery as declared and regulated by express statute. Under such a proceeding any order made was, in the nature of things, temporary and open to such modification as the situation itself might, from time to time, call for. The order itself expressly provided that "either party may apply to this court for further direction as there may be occasion." Under the circumstances, it would seem to be clear that the court, having at the beginning acquired complete jurisdiction over the defendant and her children, may continue to exercise that jurisdiction as occasion may require. In Laing v. Rigney, 160 U. S. 531, 16 Sup. Ct. 366, 40 L. Ed. 525, a wife resident in New Jersey filed a bill for divorce against her husband, resident in New York. The defendant appeared and answered. Then thefirmed. The refusal to so instruct is the only assignment of error, and it is sustained.
Judgment reversed, and judgment is now entered for the defendant.