Petition for Writ of Certiorari — Florida ex rel. Fox v. Webster

Supreme Court brief1964

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JOHN F. DAVIS, CLERK

IN THE 3

Supreme Court ‘of the United States

pee 8

No. SE /4/2.

STATE OF FLORIDA, ex rel., NORBERT FOX, individ-

ally, and as next friend and legal custodian of DE-

BORAH AINN FOX and DENISE MARIE FOX, his

be two minor children,

Petitioner,

FLORENCE J. WEBSTER, formerly known as

FLORENCE J. FOX,

: Respondent. —

' PETITION FOR A WRIT OF CERTIORARI TO THE

_ DISTRICT COURT OF APPEAL OF FIORIDA,

THIRD DISTRICT —

PAUL A. LOUIS

Attorney for Petitioner

1601 Alfred I. duPont Building

Miami, Florida 33131

Of Counsel

BERTHA CLAIRE LEE

16v. Alfred 1. duPont Building

Miami, Florida 33131 |

EDWARD J. McBRIDE‘ _ >

506 Biltmore Way |

Coral Gables, Florida

Opinions Below Aline gener res sede

J urisdiction ete Calas Woda Sera ODEO RIM

Questions Presented - SY CROSS |

Constitutional Provisions Involved... EER

Statement of the i Maa.

The Parties eee

: Background of Controversy Biomed atecas

Proceedings Below in the Case at Bar.

Reason for Granting the Writ... xe. ~

Important and Unsettled Question, Concern-

ing the Extent to Which State Courts Must

_ 17-23 -

Grant Full Faith and Credit to Valid Cus- —

todial Decrees of Sister States Absent

Changed Conditions Affecting the Welfare

of the Child under Article IV, Section 1 of

the United States Constitution Should Be

Settled by Pronouncement of This Court

Conclusion

Appendix

Opinion and Judgment of District Court of

Appeal of Florida, Third District, dated

March 12, 1963

INDEX (cont.) .

: ; - Page

Order of the Supreme Court of Florida, Case >

‘No. 32769, ‘watices certiorari, dated 28

‘October 1963 _ “ogee nee ms Sasreen nae App. q

‘Order of the ae Court of Florida, Case

_ No. 32769, discharging Writ of Certiorari, . |

dated 22 ey, 1964... PL Tey tia roe App. 8

Petitioner's Exhibit 2:

Order of the Court of Common Pleas of the.

County of Cuyahoga of Ohio, Case No. 702, |

725, awarding custody of the children to - -

NON an scenes cinpentnntndanntnennnat Sas 10

- Petitioner’s Exhibit 4:

Certification of the egg of the a

of Domestic Relations Reacts _ App. 13

Report to eee... AM

Reports to other Courts and Social Agencies. App. 26

Summary and a 8 Conclusions. om App. 28

Department of himninte Relations’ Notice. of |

Recommendation dated 9-21-60... . App.29 .

Journal] Entry to be Recommended . App. 30

Reporter’s Transcript, Page 34, “In the Mat-

ter of the Application of Norbert Fox for ,

Writ of Habeas seats ” dated March 6,"

1961 . Beverieienasicabbscgcevenitasscclck . App. 32°

oY INDEX (cont.)

A ee eb , Page

Petitioner’s Exhibit 5: : ay ee

Order denying supersedeas of the District

Court of Appeal of California, Second Ap-

pellate District, Division 3, Second Civil

LS ORE te eee

' Order denying writ of supersedeas: of the

District Court of Appeal of Florida, Sec- |

ond Appellate District, Division 3, Second

Civil No. 25374, as it appears in the Cali-

fornia Appellate Reporter... poner nee App. 36

. TABLE OF CASES

ae, Page

Bastiar v. Bastian, 160 NE 2d 133 (Ohio 1959) ;

»73 ALR 2d 1440 et eae aceneeinntnrineaicistin Santee =: 20

Ford v. Ford, ‘871 US 187, 9 L Ed 2d 240, 88.8 Ct

a dl i ; 17

New York, ex rel. Halvey v. Chieti 330 US 610,

91 L Ed 133 (1946) _. nS

State ex rel. Fox v. Webster: (Fla. App. 1963) 151

So. 2d 14... 1, 16, 20, 21

CONSTITUTIONAL AND.STATUTORY

| PROVISIONS

oar Page

Article IV, Section 1 of the Constitution ot the

United States 2... . 8,17, 22, 28, 24 -

28 US.C. Section 1257 (3).

Chapter 65, 141, Florida Statutes 1963.00... 19

Deering’s Penal Code of California, Section wee,

Chap. I'V, Child Stealing ....-.-.......-.._-:-:.. 18

-Page’s Ohio Revised Code Annotated,’ Title 29,

sSec. 2901.33, Child Stealing (GC Sec. 12425) 18

_ Revised Code of Ohio, Sections 3109.02, 3190.94. —s-:19

IN THE

| Sacemne Court of the United States

. “ae No. ceseeee. ; wenencoresscooocan: cae

STATE OF FLORIDA, ex rel., NORBERT FOX, individ-

ually, and as next friend and legal custodian of DE-

BORAH ANN FOX and DENISE MARIE FOX, his

two minor children,

Petitioner,

FLORENCE J. WEBSTER, formerly known as

FLORENCE J. FOX,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

DISTRICT COURT OF APPEAL OF FLORIDA,

: THIRD DISTRICT —

TO ,THE HONORABLE THE CHIEF JUSTICE AND

THE ASSOCIATE JUSTICES OF THE SUPREME

COURT OF THE UNITED. STATES:

Norbert Fox, a citizen of Ohio, respectfully prays

that a writ of certiorari issue to review the judgment

of the District Court of Appeal of Florida, Third District,

_ éntered on 12 March 1963, affirming the Final Order of

8 May 1962 of the Circuit Court of the Eleventh Judicial

- Circuit in and. for Dade County, Florida, discharging a

writ of habeas corpus wherein Petitioner sought to enforce

Ohio and California decrees awarding custody of his two

minor daughters to him. The Circuit Court granted

custody of the children to Respondent. (State ex rel.

Fox v.. Webster, (Fla. App. 963) 151 So. 2d 14.)

OPINIONS BELOW

The opinion of the District Court of Appeal of Flor-

ida, Third District, dated 12 March 1963, is reported at

151 So. 2d 14 and is reprinted in the Appendix to this -

Petition ‘App. 1-6). Rehearing was denied 2:April 1963.

_ The order of the Supreme Court of Florida dated 28

- Octobe » 1963 allowing certiorari is reprinted in the Ap-

pendix to. this Petition (App. = .

The order of the Supreme Court of: Florida; dated

22 January 1964, dismissing the writ of certiorari ‘is re-

printed in the Appendix to this Petition (App. 89). Re-

hearing denied 2 March 1964. |

The order of the Ohio Court of Common Pleas, Coun-

ty of Cuyahoga County, Case No. 706,725,-daied 8 October

1960, is reprinted i1 in the Appendix to this Petition ‘App.

10-12 ).

The order of the Superier Court of California, Coun-

ty of Los Angeles, Department No. 95, In The Matter |

of the Application of Norbert Fox for Writ of Habeas.

Corpus, HC 75853, dated 6 March ‘1961, is reprinted in

the a hereto (App. 32-33).

Dae bees

JURISDICTION

The jurisdiction of this Court is invoked under 28

_‘US.C. Section 1257(3).

QUESTIONS —

(1) . In the absence of en Aensintinnin,

is it repugnant to Article IV, Section 1 of the:

United States Constitution for a Florida Court .

to deny full faith and credit te an Ohio decree’

‘awarding ¢ustody of minor children to their

father? . : .

(2) Where a California Court adjudicates an

Ohio custody order*to be valid, in the absence

of changed circumstances, is it repugnant to

Article IV, Section 1 of the United States Con-

stitution to deny full faith and. credit to a

' California ‘decree ‘adjudicating the same Ohio.

decree to be, valid?

CONSTITUTIONAL PROVISION INVOLVED

_ Article IV, Section 1 of the Constitution of the United

States provides:

“Full faith and credit shall be given in each State

to the public acts, records, and judicial proceed-

ings 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.” |

STATEMENT OF THE CASE

The Parties

Norbert Fox filed a Petition AS Writ of Habeas

Corpus against his ex-wife, Florence J. Webster, formerly

known as Florence J. Fox, seeking the custody of his two

minor- daughters, Deborah Ann- Fox and Denise Marie

Fox (R 19-24). In his Petition, the husband relied upon

two decrees of sister states; an Order of the Ohio Court

of Common Pleas, dated 8 October 1960, granting him

custody of the children (R 20-22, App. 10-12) and a sub-

sequent Order of the California Court adjudicating the

validity of the Ohio decree (R 22, App. 32-33).

Background of Controversy

The parties were married at Cleveland, Ohio, on 27

June 1953. Deborah Ann, now 9 years of age, and Denise

Marie, now 8 years of age, are issue of said marriage

(R 19). -

4 The wife met her present husband, Richard Webster,

-+n-Cleveland while he was on leave from the Service (R

92). Webster was employed by Trans World Airways.

prior to being in the Service and resumed his employment

thereafter (R 92). In August of 1958 Webster was trans-

ferred by TWA from Cleveland to Los Angeles, California

(R 93). ; ' |

In October of 1958 (R 224), the husband returned

‘from work to find a note from the wife stating, ‘““We have

left ‘for California for a two week vacation.” (R 93-94,

224:'. The wife remained in-California for three months

. 94, 225), fairl which time the husband supported

her and the childven (R 94, 225), and pare aces returned

to Qhio.

Four months later, in-May of 1959, the wife, leaving

another note on the kitchen table, again departed for

California with the children (R 225). She remained in-

California approximately a year. During this year the

yes continued to support the wife and his children

On 17 November 1959, the wife ‘gave birth to a third

~ child in Torrence, California, while stil! married to hus-

band (R 88-90). The wife concealed the birth of her son

from husband and his birth certificate shows that Web-

ster is the father (R 89). Without the knowledge or per-

mission of -her then husband, Respondent-wife gave her

son up for adoption, but later yegained ‘custody of said

child (R 91).

At the hearing the wife testified that she did not

know whether husband Fox or Webster was the father

of said child, but admits that in a previous California.

hearing she had testified that husband Fox “was not the

father of the child.” (R 122). “In order to save trouble”

the wife placed said child for adoption (R 91). Webster

testified that at the time of the adoption he was not sure

that he was the actual father of the child and admits

having written a letter to the wife during this period of

time concerning a third man, Jim Whitely, with whom

the wife traveléd across the continent (R 187) and planned

. to spend a night in New York at his cousin’s (R 187). The

“wife first testified that-Webster was not jealous of White-

ly (R 186) but then testified that he was (R 187). -She

denied that they were romantically invoived (R 187) but

admits that she had in her personal possession his picture

suitable for framing (R187).

In the Spring of 1960 the parties executed a separa-

tion agreement which was later incorporated in the Final

Decree and which, inter alia, provided: (R 20-22’

“4(a) The wife shall have the sole and ex- -

clusive custody and control of the children of |

’ said marriage subject to the following restriction.

The wife shall maintain a residence for said chil-

dren within Cuyahoga County or the Counties

contiguous to Cuyahoga County so that the hus-

band shall-be able to have the right to have

private visits with the children at least once each

week if he will notify the wife in advance and

obtain her consent to the time of the visit. Such

visits shall not interfere with the schooling, sleep

_ and general welfare of the children. It is agreed

between the husband and the wife that the wife

may not change the resident environs of the chil-

dren as set forth above without. obtaining the

_ prior approval of the husband or the court.

“(b) The husband shall pay the wife for the .

support and care of said children the sum of

$120.00 per month. ,

eran

“(qd) The parties hereto mutually agree that

the children shall be educated-in Catholic Elemen-

tary Parochial schools and the husband shall pay

‘

whatever additional amount is necessary for this

education. The children shal] have a Catholic

High School education, if they elect to go to a

Catholic High School, and the husband shall

“the additional cost of such education.” —

and which was entered by the Court on 18 May 1960

(PX 1).' At the time of the divorce, the wife knew that

she was going to marry Webster (R 94) who was working

in California but claimed he was to be transferred back

to Ohio (}: 95).

Divorced on 18 May 1960 (PX 1), the wife and Web-

ster were married on 1 June 1960 (R 96). The wife admits

that at the time of/the divorce husband Fox did not know

about the third child having been born in California.

Webster was not transferred to Ohio and on 20 July 1960,

the wife filed a Motion to Permit her to Remove the two

children to California (R, PX 2). The hearirig on her

Motion was scheduled for 5 August 1960 (R 96, PX 1A

for iden.) On 23 July 1969, the husband filed his Motion

for an Order Changing Custody and control from the wife

to the ""sband (PX 2, App. 10-12), alleging that-at the

time the wife entered into a separation agreement, she

promised to keep the children in the Ohio jurisdiction; she

well knew that her husband to be was assigned to the Los

Angeles area and that “she wilfully entered into the

agreement knowing full well that when the divorce was

obtained she had no intention to keep that part of the

agreement which, she knew was most vital” to husband

Fox and further alleged that it was in the best interests

.of the children that their custody be awarded to him.

'Florence J. Fox vs Norbert Fox, Case No. 706,725, in the Court

of Common Pleas, Cuyahoga County, State of Ohio.

The hearing scheduled on wife’s Motion for Permis-

sion for Removal was scheduled in Ohio on 5 August

1960 (R 96). On 4 August 1960, contrary to the recom-

mendation of her Ohio attorney, she removed the ‘children

‘to California (R 102). In the instant hearing the wife

denied that she knowingly defied the order of the Ohio

Court (R 97, 99), but admits that in a subsequent hearing

in California, she saacaucs to the contrary.? (R 98).

The wife an the two girls to California so that she

would not have-to worry about them (R-102). ‘Immedi-

ately upon deplaning, she and Webster went to a Cali- -

fornia attorney and filed an action in California against

the husband in Ohio for child support (R 102).’

In Los Angeles the wife worked in a bar and restau-

rant. and she and her husband worked on opposite shifts

so that they would not have to pay a babysitter for the

three minor children (R 104). Although seeking child

support (R 103), the wife disclaimed the need for money,

and worked because she enjoyed it (R 104).

Meanwhile, back in Ohio, the husband’s Petition for

Change of Custody had been personally served upon the

wife before she left Ohio (R 172). The wife admits signing

the United States postal receipt for the report of the

Department of Domestic Relations on 26 September 1960

(PX 4, App. 10, R 174). The report, which is self-explana-

tory, reflects that the Ohio Department of Domestic

Relations conducted an extensive investigation concern-

*“(. You knew wher—ou-teok—the children from Cleveland to ~

Los- Angeles you yiolated the order of Court?

A. If that is the way it is put, I guess.”

3LLos Angeles Superior Court No. 21504.

9 ;

ing the fitness of the. father and sought to obtain in-

formation concerning the mother, but. was unsuccessful —

in procuring such~information (PX 4, App. 17, 27).* Said

report further shows that the recommendation of the

Department of Domestic Relations would be submitted

to the Ohio judge for signature (PX 4). On 8 October

1960, the Ohio Court entered the following Order (PX

App. 10-12):

+ . . “COUNTY OF CUYAHOGA

Cleveland, Ohio

The Court of Common Pleas

Departntent of Domestic Relations

Room 50, Court House ‘

__E. Dana Brooks,

Director -

° . - April 23, 1963

: Re: 706,725 Fox

- TO WHOM IT MAY CONCERN:

This: is to certify that the attached-photostatic copy of the report

of the Department of Domestic Relations upon the motion to change

custody and control of the minor children, Deborah Ann and Dennis

Marie Fox, filed July 28, 1960, Is a true and correct copy of the De-

partment of Domestic Relations relating to such motion. Further the

records of this Court show that a notice of the recommendation was

delivered by certified miail to the plaintiff, Florence J. Fox, also known

as Mrs. R. L. Webster, the same being certified under No. 808380, on

September 21, 1960, and a return receipt signed “Mrs. R. L, Webster”,’

on September 26, 1960, bearing certified No. 808380, is a part of the

Department's file in the above action.

. ‘The recommendation of the Department of Domestic Relations

was reduced to a journal entry and signed by the presiding judge, and

appears of record in Journal Volume 352, page 590. .

Yours very truly,

/S/_ E. Dana Brooks

E. Dana Brooks”

EDB/jp

Ene.

IN THE COURT OF COMMON PLEAS

NO. 706,725

“STATE OF OHIO — )

COUNTY OF CUYAHOGA ) SS

Florence J. Fox, . )

| | Plaintiff, ) JOURNAL

vs. ) ENTRY —

Norbert Fox, . )

‘ Defendant. |

October 6, 1960

This matter coming on to be heard upon the motion

of the Plaintiff to move children from Cuyahoga County,

-and motion of Defendant to modify custody the Court

being fully advised in the premises, and having received

the report and recommendation of the Departmen’ of

Domestic Relations finds that service was had acco’ ing

to law and that a notice of the recommendation w | de-

livered to both parties or their counsel on Septem :r 21,

’ 1969 and that no motion for an oral hearing bef re the

Court has been filed pursuant to Rule 23 (d) of ‘ e rules

of this Court, and that therefore the parties are ound to

have waived their right to any further hearing thereon: |

The Court further finds that by order of this Court

heretofore rendered, the custody of the minor children

of the parties was awarded to the Plaintiff and that the

Defendant was ordered to pay the sum of $120.00 per

month for the support of the minor children.

The Court further finds that the Plaintiff. has re-

moved the children from the State of Ohio contrary to

the provisions of the separation agreement and decree.

The Court further finds that by reason of the

changed conditions and circumstances since the date of

_ the previous oraer, the same should be modified.

WHEREFORE, IT IS ORDERED, *ADJUDGED

_ AND DECREED that the motion of the plaintiff for per-

mission to remove the children from the County of Cuya-

hoga be and is hereby denied.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that the Plaintiff shall return the minor chil-

dren to the County of Cuyahoga and the State of Ohio

or or before October 4, 1960, and in the eve: . she fails

or refuses to return the said children to the jurisdiction

of the Court. the custody of the minor children, Deborah

Ann, born October 21, 1954, and Denise Marie, born June

21, 1956, be and is hereby granted to the defendant who

is ordered to return the children to the jurisdiction of

this Court. :

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that in the event the plaintiff fails or refuses.

to return the minor children to the jurisdictior. of this

Court or fails or refuses to turn the said children over

to the defendant at his request upon the operation of

this order transferring custody of said children to ‘the

defendant the orders heretofore made for the support of

said children shall be and are hereby terminated. until

further order of the Court. _

: S Charles W. White ©

Judge”

divorce journal 352, page 590

_ The wife failed to obey the Order of the Ohio Court.

On 28 February 1961, husband filed a Petition for Writ

of Habeas Corpus in the Superior Court of the State of

California in and for the County of Los Angeles in an

effort to retain custody of the minor children (PX 4 App.

32-33). The Writ of Habeas Corpus was issued and was

assigned to Honorable Allen Miller, Judge of said Court,

in Department No. 95, under Case No. HC 75853; that

testimony was heard before said Judge on 6 March 1961

at a time when both parties were represented by counsel

(App. 32-33). At the conclusion of the hearing (App. 32-

33, p. 34) Judge Allen, inter alia, stated:

“However, the situation irlvolved in this case is

a matter primarily of jurisdiction. We have a

valid order of the Court of Common Pleas of

Ohio, which is a good order, in my mind, a valid

order, and this is primarily jurisdictional, and

they did have jurisdiction over the parties at

the time it made that order, and by reason of

comity, and otherwise, I am going to sagan this

_ writ.of habeas corpus.

I am going to stay execution thereof for three

days and I am going to make an order, specific

‘order, that the children are not to be removed

from their present residence or out of the county

of Los Angeles pending the three day stay of

execution.” ;

- Thereafter the wife, Florence J. Webster, filed a Petition

for Supersedeas in the District Court of Appeal of the

State of California, which Petition was Gented on 5,

App. 34-36).

fm,

Notwithstanding the ruling of the Ohio Court and

the ruling of the California Courts that custody of the

minor children should be with the fathen in complete

disregard of the Order of the California court, for the

second time, the wife,. Florence J.. Webster, in the face

of a second valid Court Order, took the law into her own

hands and fled the jurisdiction of the California Court,

as she had previously done with me Ohio Court (R 112).

After the California Court ordered the wife to sur-

render the custody of the two children to the husband,

aware of the ramifications (R 108-114), the wife and

Webster abandoned California, drove to Florida, and then

flew to San Juan, Puerto Rico (R 112).

The wife admitted that at least one check was re-

turned for insufficiency. of funds (R 113); that she and

her husband sought to conceal their whereabouts (R 114)

and that they were later informed that the police were

looking for them; and that in violation of law, they dro

from Los Angeles to Florida in a truck and camper whien

they did‘not own, abandoned it at the Miami Airport, and

informed their brother-in-law, who had “the credit people

take care of it.” (R ren

Deborah Ann was meaieuil from school in Lm

and did not attend school during the four months she

was in Puefto Rico (R 115). They returned to Miami on

18 July 1961 (R 56), where. wife had her fourth child.

(R 115). Contrary to her agreement to educate the chil-

dren in a parochial school, the wife placed Deborah Ann

in a public school in Dade County (R 209-211), where she

was required to re-enter the first grade, although she

_ was accelerated to the second grade subsequently.

Webster, who received a tenth grade education (R

280), has a take-home pay of $90.00 a week (R 270). The

Websters rent a two-bedroom house in Hialeah, sharing

their bedroom with her son, and the three girls share the

other bedroom (R 159).

The, wife testified that the husband’s earnings are .

sufficient to meet the needs of the family (R201), but at

the conclusion of the hearing, her attorney revealed their

financial distress (R 334-335).

| Fox, 32 years of age, has not remarried, and as a.

civil service fireman earns $6,000.00 a year (R 216). He

owns 2 two-story house in Cleveland containing “two big

bedrooms, bathroom, dining room, living room, kitchen,

full. basement and recreation room, and part of the up-

stairs is finished off for living quarters.” (R 217). He has °

a high school education and took a night course at college

(R 220). Fox works “24 hours on and 48 off, which

amounts to between nine and ten days a month.” His

parents, “in perfect health,” would watch over the children

when he was at work. (R 218). When he first saw Deb-

orah Ann in Florida, she ran up, hugged and kissed him

(R 220), but since the proceedings she hides and refuses

to give him a kiss (R 222). Fox.recognizes that children

are entitled to.a mother’s love, and if he were given cus-

tody of his children, he would make it a point to encour-

age them to spend time with their.mother (R 223). At .

the time of the divorce, Fox did not know that his wife

had a third child (R 224).

At the conclusion of the hearing the Judge, discharg-

ing the Writ, stated, inter alia: (R 332) ;

In hearing the evidence this court finds that

both parents, I believe, are well-able to care for

these children, but the Court finds that the wel-

fare of the children would be best served to be

with the mother, even though I am satisfied

' from the evidence I have heard that you have

not always been an exemplary person, but I feel

at the present time you are rearing your children

properly and that she should have custody of. the

children.”

Proceedings Below in the Case at Bar

On -12 April 1962, Norbert Fox, as Petitioner, filed

a. Petition against his former wife for a Writ of Habeas

Corpus seeking custody of his two minor children (R 19-

24). Petitioner relied upon an Order of the Ohio Court

of Common Pleas dated 8 October 1960 granting him

custody of the children (App. 10-12) and a subsequent

Order of the California court (App. 32-33). Petitioner ©

also offered evidence that the Respondent-mother was

‘unfit (R 11). On 8 May 1962, the lower court discharged

the Writ of Habeas Corpus and granted custody of the

children to the Respondent-mother, although noting that

it did not find the petitioning father to be an unfit parent

(R 332):

_ In the trial court, Petitioner raised and affirmatively

presented a Federal question involving full faith and

credit of the decrees of two sister states, Ohio and Cali-

fornia. On appeal to the District. Court of Appeal, Peti-

tioner raised, affirmatively presented and argued to the

District Court of Appeal the same Federal question as to

full faith and credit. (State ex rel. Fox v. Webster, 151

So. 2d 14 (Fla. App. 1963). (App. 1-6).

_. On 12 March 1963 ( Rehearing denied 2 ia 1963),

the District Court of Appeal affirmed the Order Discharg-

ing the Writ of Habeas Corpus and decided the Federal -_

question of full faith and credit cr comity adversely to

the Petitioner. (State ex rel. Fox v. Webster, supra, App.

1-6).

On 29 May 1968, Petitioner filed his Petition for Writ |

of Certiorari to review the Order of the District Court

of Appeal affirming the Ordér of the Circuit Court in

and for Dade County, Florida. In his Petition for Certi-

‘ orari, Petitioner affirmatively presented to this. court

the above stated Federal questions. The decision of the. -

said Federal question was necessary .to the determina-

tiun of this cause by this court, and the judgment ren-

dered by this Court could not have been rendered: without

deciding it. iR 1-13).

On 28 October 1963, the court sisi an Order

Allowing Certiorari and set down oral argument on juris-

diction and merits (R 337, App. 7). After said oral argu-

ment on 22 January 1964, the Petition for Writ of Cer-

tiorari was denied (R 338, App. 8).

On 6 February 1964, Petitioner filed his Petition for

Rehearing. On 2 March 1964 said Petition was denied —

(R 341).

REASON FOR GRANTING THE WRIT

Important and Unsettled Question Concerning

- the Extent to which a State Court Must Grant

Full Faith and Credit to a Valid Custodial Decree

of a Sister State Absent Changed Conditions

Affecting the Welfare of the Children under

Article IV, Section 1, of the Constitution Should

Be Settled by Pronouncement of this Court.

The courts .of California and Florida, confronted

with an identical order, identical parties and identical

issues, rendered clashing adjudications. With one of every

_ four marriages terminating in divorce, the public interest ”

demands that this Court settle the problem arising from

run-away custody cases. In Ford v. Ford,' as in New York:

ex rel. Halvey v. Halvey,? this Court expressly declined to

consider the extent to which the court of the forum must

give full faith and credit to a valid custody order of a sis-

ter state. The case sub judice presents a dramatic exam-

ple of why this Court should no longer av oid’ a clear pro-

nouncement of the weight to be given foreign custody

decrees under the full faith and credit clause of the

United States Constitution where there is no question, of |

jurisdiction or caanged circumstances. In the instaat pro-

ceedings, unlike many custody cases, there is no issue of

jurisdiction over the parties and their children. In every .

court in this coast-to-coast: litigation, the parties and the

children.were physically present. Moreover, in Ohio, whose

1371 US 187, 9 L Ed 2d 240, 83 S Ct 273 (1962).

7330°US 610, 91 L Ed 133 (1947). °

~4In Ford, supra note 1, this Court said, 371 US 187, 1929 L Ed

2d 244: “Whether the South Carolina court's interpretation of the Full

F aith and Credit Clause is a correct one is a question we have prev-

iously reserv ed. We need not reach that question here.”

decree the husband seeks to enforce, it was the mother

who 4nvoked the jurisdiction of Ohio and then fled. This

self-imposed judicial “quarantine” has become an incuba-

tor for continuing litigation over custody and abduction’

of children. Nor was such turmoil unforeseen by Mr.

Justice Rutledge in his concurring opinion in New York

ex rel. Halvey v. Halvey.‘

Armed with Ohio and California custody decrees,

Norbert Fox, confident that there had been no change in

circumstances in his ability to provide a good home for

his children, had the naivete to resort to a court of a sister

state to obtain the actual custody that twice had been

judicially given to him. Mr. Fox did not avail himself of

the criminal laws of Ohio’ or California‘ to settle a private

controversy. It is absurd but true that Mr. Fox would

4330 US 609, 619, 91 L Ed 1133, 1438: “The result seems un-

fortunate in that, apparently, it may make possible a continuing round

ot litigation over custody, perhaps also of abduction, between alienated

parents: That consequence ‘hardly can be thought conducive to the

child's welfare.”

‘Page's Ohto Revised Code Annotated, Title 29, § 2901.33. Child

stealing. (GC § 12425). ae

No person shall lead, take, carry, decoy, or entice away a .child

under the age of ‘twelve years, with intent unlawfully to detain or

conceal such- child trom its parent, guardian, or other person having

lawl charge or custody théreof, or knowingly harbor or conceal

child sa led, taken, carried, decoved, or enticed away.

“ hoever violates this section shall be imprisoned not less than

hve nor more than thirty years.

*Decring’s Penal Code of California, §& 278, Chap. IV. Child-

stealing. [Detinition and punishment }.

. Ever person who maliciously, forcibly, or fraudulently takes or

entices’ away any minor child with intent to-detain and conceal such

child trom its parent, guardian, or other person having the lawtul

charge ot such child, is punishable by imprisonment in the state prison

nor exceeding twenty years.

~ 19

now subject himself to criminal prosecution’ were he to

take his children back to Ohio contrary to the orders of

the Florida court, notwithstanding that no Florida court

had ruled the Ohio or California decrees invalid nor found

changed circumstances.

Today, with 2-hour airline service between Miami

and New York, 7 hours between Miami and San Fran-

cisco, mus? a father who has been awarded custody of

his minor children by two courts of competent jurisdic-

tion be compelled to litigate in every forum until the

mother finally discovers some court that will expressly -

ignore the validity or invalidity’ of a decree of a sister

state and rule that even.though the father is fit and

' proper and the conduct ef the mother has not always been

“exemplary”,’ as long as she is not an out-and-out prosti-

tute, dope’ addict, or the like, a mother’s love supersedes ali

else forthe best interests of the children. Parenthetically,

it is to be noted that in Ohio by statute'’ the mother and

"Florida Statutes 1963, Chap. 65, Divorce, Alimony and Custody

ot Children. ; ; ;

65.141. Felony to.remove children from state contrary to court

' order.—- ;,

E (1) It is unlawtuil for any person, in violation of a court order,

* to lead. take, entice or.remove a child beyond the limits of this state

with personal knowledge of the order.

‘In dismissing the writ of habeas corpus, the Florida court stated:

(R 333) Let the record reflect that I am not ruling on the validity

or invalidity of the decree chat was en.ered by the Ohio court changing

custody or modifying the decree changing custody to the father, but

suggest taking the transcript of this record back to the State of Ohio

and petition the courts there for a modification wherein you would be

granted the right to have the children for a period of one month during

the summier vaeation, leaving the permanent custody in the mother. ~

9Supra, p. 15. ;

In the opinion sub judice, on this subject the appellate court stated:

“Nor do we condone the actions of the appellee (the mother, Florence

J. Webeter.)”

SE 3109.03, 3109.04, Revised Code of Ohio.

father stand on equal footing when it comes to deciding

the custody of a minor child.

' Unlike the South Carolina Court in Ford v. Ford,"

which made a studious effort to adjudicate the custody

decree in the light of Virginia law, the Florida Courts

‘concerned themselves not at all with what the law might —

bein Ohio. The Phio law is the same as that of practically

every other state; the controlling factor is the welfare of

the child, but once a Court has determined custody, there

can be no modification in the absence of changed circum-

stances. In Bastian v. Bastian,’ the Ohio Court ruled: ‘

- “The pole star in all custody matters between

parents is, what is for the best interests of the

child whose custody it is sought to-change, sub-

ject, however, to the rule that where a court has

once dec.‘eed that a home with one of the parents

is fit and proper, no subsequent change of cus-

tody should be made, unless there has intervened

such changed cunditions affecting the welfare of

the child that a change of custody is required to

promote the best interests of that child.

See: Sec 3109.04, RC; Ludy v. Ludy, 84 Ohio

App. 195, 82 NE2d 775; Harper v. Harper, 98

Ohio App. 359, 129 NE 2d 471.”

In considering the effect of the Ohio —— the Florida

Appellate Court stated:

1371 | US 187, 9 L Ed 2d 240, 83 S Cr 273 (1962).

rit N.E. 2d 133 (Ohio 1959), 73 ALR 2d 1440.

State ex rel Fox v. Webster, (Fla. App. 1963) 151 So 2d 14

at 15, App. 1-6).

“It should be noted at the outset that prior to

the proceedings in the case at bar, only the final

decree of divorce rendered by the Ohio court on

May 18, 1960, purported to adjudicate the issue

of the fitness of the parties to have custody of

the children and determine where custody should

be placed for the best interests and welfare of

the children. The Ohio decree of October 8, 1960,

was coercive in nature and, though it had the ef-

fect of changing custody, it did not purport to do

so on the basis of fitness or welfare. The subse-

quent California decree merely placed the stamp

of approval on the Ohio- decree of October 8, ©

1960.” | ai

The record refutes Florida’s opinion. As in Ford, supra,

Mrs. Webster first obtained custody of the minor children

by agreement, incorporated into the final decree of di-

vorce (R 19-24). We respectfully suggest that the Florida

appellate court is in,error when it states that only the

original Ohio decree of May 1960 considered the fitness

‘of the parties prior to the Florida proceedings (App. 4).

Th record confirms that the Ohio decree of & October

1960 (PX 4, App. 10-32) was based upon a thorough, im-

partial investigation of the fitness of the father, Norbert

Fox. If the investigation concerning the fitness of the

mother is incomplete, it is because Mrs. Webster, after

invoking the jurisdiction of Ohio, steadfastly refused to

divulge the necessary information to arrive at a complete

report. Certainly, the Ohio decree. of 8 October 1960 was

“coercive in nature” as are-all court orders. But nowhere

in this record can it be shown that the Ohio decree chang-

ing custody was based upon some alleged contempt of the

mother. Can Mrs. Webster, having ejected to invoke the

* 92

jurisdiction of Ohio, by fleeing that state, defeat Ohio’s

jurisdiction at her capricious whim? In the 8 October

1960 order, the Ohio court first denied the mother’s pe-

tition for permission to ‘remove the children and then

changed custody to the father (PX 2, App. 10-12).

Armed with the Ohio order of 8 October 1960, Nor-_

bert Fox ‘obtained from the California court a judgment

awarding him custody of his children. In awarding the

children to the father, at a time when Mrs. Webster, rep-

resented by. counsel, was before the court with her chil-

dren, the California court specifically found the Ohio de-

cree to be valid. (App. 33)

‘We have a valid order of the Court of Common

Pleas of Ohio, which is a good order, in my mind,

a valid order, and this is primarily jurisdictional,

and they did have jurisdiction over the parties

at the time it made that order: and by reason

of comity,.and otherwise, I am going to grant

this writ of habeas corpus.”

Mrs. Webster was given the opportunity to obtain a

supersedeas from the California judgment ordering her

to relinquish custody to Norbert Fox. The Califarnia ap-

pellate court refused to grant the supersedeas (PX 5, App.

34-36). Mrs. Webster then fled from California to Puerto

Rico via Florida. We suggest that the Florida court was

bound, under Article IV; Section 1 of the United States

Constitution, to givé full faith and credit to the Ohio™

decree because until there were changed circumstances,

although admittedly subject to modification, tHe decree

of 8 October 1960 was res judicata as to the circumstances

before the Ohio court.

The Ohio decree which the Florida‘ appellate court

described as “coercive in nature” was the same Ohio de-

cree. which the California court adjudicated to be “valid”.

If Florence, Webster was of the opinion that the Ohio

decree was not valid and therefore not entitled to fuil

faith and credit as of the date of its rendition, California

was the forum in which she was required to seek an ad-

judication. She commenced her resort to the appellate

courts of California. On her own volition she abandoned

appellate review. At the expiration of the appeal period

the California judgment of validity became final. If not

before, at that. point the validity of the Ohio decree of

& October 1960 became res judicata.

We respectfully submit that under the provisions of

the Federal Constitution the Florida courts were without

jurisdiction to relitigate the validity of the 8 October 1960

award. ‘Absent a change of circurnstances the Florida

courts had absolutely no discretion under the provisions

‘of -the full faith -and credit clause of the United States

Constitution but to give to the Ohio decree the same valid-

‘ity that it enjoyed in Ohio. Contrary to what the learned

Florida trial judge said, the onus was not upon Mr. Fox

tu return to Ohio and seek a modification of the decree

granting him custody, but was upon Mrs. Webster to re-

turn to the jurisdiction which she had initially invoked

to seek a modification of the custody decree. _

‘CONCLUSION

We respectfully suggest that the time has arrived

when this Court should no longer reserve decision on its

anterpretation of the fuil faith and credit provision as

Footnote 8, supra, p. 19.

set forth in the United States Constitution, Article IV,

Section 1, as it relates to valid custodial decrees. We re-

spectfully submit that the law declared by the Florida

courts in this case merits the careful atiention of this

Court. : ,

it is respectfully submitted that this Petition for a

_Writ of Certiorari be granted.

Respectfully submitted,

PAUL A. LOUIS

Attorney for Petitioner

‘1601 Alfred I. duPont Building

‘ Miami, Florida 33131

Of Counsel ~.

BERTHA CLAIRE LEE.

1601 Alfred-I. duPont Building

Miami, Florida 33131

EDWARD J. McBRIDE

506 Biltmore Way

Coral Gables, Florida

IN THE

DISTRICT COURT OF APPEAL

OF FLORIDA |

THIRD DISTRICT

JANUARY TERM, A.D. 1963

CASE NO. 62-445

NOT FINAL UNTIL TIME EXPIRES TO FILE

_ REHEARING PETITION AND, IF FILED,

DISPOSED OF.

STATE OF FLORIDA, ex rel.

NORBERT FOX, individually, and as next friend

and legal custodian of DEBORAH ANN FOX and

DENISE MARIE FOX, his two minor children,

Appellant,

vs.

FLORENCE J. WEBSTER, formerly known as

‘FLORENCE J. FOX,

Appellee.

Opinion filed March 12, 1963.

An Appeal from the Circuit Court for Dade County,

George E. Schulz, Judge.

Edward J. McBride, Paul A. Louis & Bertha Claire

Lee, oer appeilant.

Everett H. Dudley, Jr.. for appellee.

App. 2

Before PEARSON, C.J., and HORTON and HENDRY, JJ.

_ . HORTON, Judge.

The appellant husband was the petitioner in a habeas

corpus proceeding.in the Circuit Court of Dade County,

. Florida, in which he sought the custody of two minor

children born to the parties during their marriage. This

appeal is from an order discharging the writ of habeas

. corpus and continuing custody of the children in the ap-

pellee. We affirm. :

This action arose out of the following facts. The

appellee obtained a divorce from the appellant in the State

of Ohio on May 18, 1960. The final decree incorporated

the terms of a property settlement and custody agree-_

ment between the parties. By its terms, the appellee,

inter alia, was awarded custody of the minor children of -

the parties on the express condition that she did- not change

the residence of the children without the approval of the

appellant or the court. The appellant was granted reason-

able rights of visitation. .

On June 1, 1969, the appellee remarried, and on July

20, 1960, she filed a motion with the Ohio court requesting

- permission to remove the children to California. Hearing

on the motion was scheduled for August 5, 1960. On July

28, 1960, the appellant filed a motion for change of cus-

tody, alleging that-the appellee had never intended to live

up to her undertakings in the separation agreement and

had always intended to remove the children from the State

of Ohio. A copy of this motion was personally served on

the appellee.

App. 3

On the day preceeding the hearing on her motion to

remove, the appellee moved to California, taking the chil-

dren with her. The appellant’s petition for change of cus-

tody and appellee’s motion for permission to remove were

heard by the Ohio court after an extensive investigation,

by the Department of Domestic Relations. The appellee

did not make an appearance. Based upon the appellee’s ap-

parent violation of the separation agreement and the final

decree of divorce, the court, on October 8, 1960, entered an °

order which denied her motion for permission to remove

the children from Onio and ordered her to return them to

the State of Ohio on or before October 4, 1960. The order

further provided:

“,.. (I)n the event she fails or refuses to return

‘said children . . . the custody of tiie ininor chil-

dren... be and is hereby granted to the defend-

ant who is ordered to return the children’ to the

jurisdiction of this court. >

“_.. (I)n the event the plaintiff fails or refuses

to return the minor children to the jurisdiction of .

this court . . . the orders heretofore made for

the support of said children shall be and are

hereby terminated until further order of this

court.” °

~Armed with this oder, the appellant followed the

appellee to California where he brought a habeas corpus

. proceeding. The California court granted the writ solely

on the basis of comity, indicating that it considered the

Ohio order dated October 8, 1960, to be valid. No i Inquiry

was made into the fitness of either party to have custody

of the children. Following an unsuccessful appeal. the

App. 4 -

ae a

appellee and her husband took the chidren to San Juan,

Puerto Rico. In July 1961, the appellee brought the chil-

dren-to Miami, Florida, where the appellant instituted the

_ habeas corpus proceeding which culminated ‘in the order

appealed.

It should be notéd at the outset that prior to the pro-

ceedings in the case at bar, oniy the final decree of-divorce

rendered by the Ohio court on May 18, 1960. purported tu

adjudicate the issue of the fitness of the parties to have

custedy of the children and determine where custody

should be placed tor the best interests and welfare of the

children. The Ohio decree of October 8, 19 °, was coercive

in nature and, though it had the effect of changing cus-

tody, it did not purport to do so un the basis of fitness or

welfare. The subsequent California decree merely placed

the stamp of approval on the Ohio decree of October 8,

1960. o3

Though he tacitly concedes that the Ohio decree of

October 8, 1960, is not ipso facto entitled to full faith and

credit, the appellant contends that both it and the Cali-

fornia decree recognizing its validity should, in this case,

have been accorded full faith ance credit, or at ieast comity.

We find this contention to be without merit.

_ When jurisdiction vests in a custody case,.the court

has a duty to determine from the evidence where the minor

child should be placed for its own best interest. DiGiorgio

v. DiGiorgio, 153 Fla. 24, 13 So.2d 596. The court should

not refuse to exercise jurisdiction or be deterred in the

discharge of this duty by what it might be convinced fs _

the bad faith of one parent in removing the child from. a

App. 5

sister state. DiGiorgio v. DiGiorgio, supra: see also Wil-

liamson v. Osenton, 232 U.S. 619, 34 S.Ct. 442, 58 L.Ed.

758. Further, a foreign decree involving the issue of cus-

tody is required to givé way to a Florida decree based on

"the best interests and welfare of the minor ‘involved. This

is so because decrees affecting the custody of minor chil-

dren ure not considered final but may be modified from

time to time should the circumstances and changed con-

ditions indicate that the best interests and welfare of the

minor require a change of custody. Avery v. Heermance,

Fla.App.1962, 138 So.2d 775; Neal v. State, Fla.App.1961,

135 So.2d 891; Rhodes v. Bohn, Fla. - 1959, 114 So.2d

493, aff'd. 121 So.2d 779.

' As to the rule of comity, ‘a court is not required to

accord comity to a foreign custody decree but may, within

its discretion, do so where practical convenience and ex-

pediency. make it desirable. Neal v. State, supra: Rhodes

v. Bohn, supra.

Reverting to the-case sub judice, it is true that the

appellee apparently acted in bad faith in ignoring the

orders of the Ohio and California courts. However. it. was

_ the duty of the trial court to base its determination of

_ Where the custody of the children should reside on their

“best interests and welfare and not oh the good or bad faith

of the parties. Frrther, the trial court was not required

to give full faith and credit to the orders of the Ohio and

California courts, nor, we conclude, did it abuse its dis-

cretion in refusing to accord them comity.

Appellant further contends that the record does not

support the trial court’s conclusion that custody of the

two minor children should continue with the appellee. We

App. 6 Rs

hesitate to sit in judgment of the trial court’s view of the

facts and since it has not been made to appear that it was

guilty of an abuse of discretion in this regard, we must

‘reject this contention.

What is said here is-not intended to prejudice any

rights of visitation the appellant has under the final de-

cree of divorce or any right he might have in the future to

seek a change in custody upon a showing that the best in-

terests and welfare of the minor children require such a

change. Nor.do we condone the actions of the appellee.

However, we must recognize the principle that in a case

such as this, the paramount consideration is the best in-

terest and welfare of the minor children. ©

The decree appealed is hereby affirmed.

PEARSON, Chief Judge ‘dissenting.

It is my view that a respect for law is an essential

qualification for one seeking custody of a‘child. Bourn v.

Hinsey, ‘134 Fla. 404, 183 So. 614, 616. I think that this,

record reveals a studied defiance of the courts of two

states. .

I would reverse.

“App. 7

_IN THE

SUPREME COURT OF FLORIDA. .

JULY TERM, A.D. 1963

MONDAY, OCTOBER 28, 1963

CASE NO. 32,769

STATE OF FLORIDA, ex rel., NORBERT FOX,

. individually, and as next friend. and legal custo@jan

of DEBORAH ANN FOX and DENISE MARIE FOX,

his two minor children, ;

Petitioner,

vs.

FLORENCE J. WEBSTER, formerly known as

_ FLORENCE J. FOX.

Respondent.

ORDER ALLOWING CERTIORARI

The Petition herein for a Writ. of Certiorari to the.

District Court of Appeal, Third District of Florida, is

granted. |

It is further ordered that the duly certified copy of

the transcript of the proceedings below, which accom-

panied the Petition, be filed as though in response to such

Writ. : :

App. 8

* It is further ordered that said cause be set down for

oral argument on jurisdiction and merits at 9:30 o’clock -

A.M. on Tuesday, December 8, 1963.

A True Copy

TEST:

GUYTE P. McCORD

Guyte P. McCord —

Clerk Supreme Court.

(SEAL)

IN THE

SUPREME COURT OF FLORIDA

JANUARY TERM, A.D. 1964

WEDNESDAY, JANUARY 22, 1964

CASE NO. 32,769

STATE OF FLORIDA, ex rel., NORBERT FOX,

individually, and as next friend and legal custodian of

DEBORAH ANN FOX and DENISE MARIE FOX,

his two minor chiidren,

Petitioner,

VS.

FLORENCE J. WEBSTER, formerly known as

FLORENCE J. FOX,

Respondent.

The petition for writ of certiorari in this cause re-

App. 9

flects probable jurisdiction of the cause in this court. We .

issued the writ and have heard the arguments of the

oa parties. After hearing arguments and upon further con-

\ sideration of the matter, we have determined that..the

| petition is without merit, therefore, the writ must be and

at it is hereby discharged and the petition for writ of cer-

tiorari dismissed.

| ‘

( <A True Copy

\/ TEST: |

GUYTE P. McCORD

Guyte P. McCord

Clerk Supreme Court.

(SEAL)

App. 10

EXHIBIT 2

Filed 4-23 A.D. 1962

Case No. 2336

GEORGE E. SCHULZ,

Circuit Judge

IN THE COURT OF COMMON PLEAS

NO. 706,725

COUNTY OF CUYAHOGA |

STATE OF OHIO )

. SS:

FLORENCE J. FOX

. Plaintiff,

-V8- |

NORBERT FOX,.

Defendant

JOURNAL ENTRY

October 8, 1960

This matter coming on to be heard upon the motion

of the Plaintiff to move children from Cuyahoga County,

and motion of Defendant to modify custody the Court be-

ing fully advised in the premises, and having received the -

App. 11

report and recommendation of the Densrtaniait of Domestic

Relations finds that-:ervice was had according to law and

that a notice of the recommendation was delivered to both

parties or their counsel on September 21, 1960 and that

no motion for an oral hearing before the Court has been

filed pursuant to Rule 23(d) of ‘the rules of this Court,

and that therefore the parties are found to have waived

their right to any further nearing thereon:

The Court further finds’ that by order of this Court

heretofore rendered, the custody of the minor children of

the parties was awarded to the Plaintiff and that the De-

fendant was ordered to pay the sum of $120.00 Sad month

for support of the minor —

‘The Court Hilal finds that the Plaintiff has re-

moved the Children from the State of Ohio contrary to the

provisions of the separation agreement and decree.

The Court further finds that the Defendant is fully

. paid under said order.

’ The Court further finds that by reason of the changed

conditions and circumstances since the date of the previous °

order, the same should. be modified.

WHEREFORE, IT ISORDERED ADJUDGED AND

DECREED that the motion of the plaintiff for permission

to remove the ¢}.jidren from the County of Cuyahoga be

and is heret, denied.

IT IS FURTHER ORDERED ADJUDGED “AND

DECREED that the Plaintiff shall return the minor chil-

dren to the County of Cuyahoga and the State of Ohio on

App. 12

or before October 4, 1960, and in the event she fails or

refuses to return the said children to the jurisdiction of

the Court the custody of the minor children Deborah Ann,

Born October 21, 1954, and Denise Marie, born June 21,

1956, be and is hereby granted to the defendant who is

ordered to return the children to the jurisdiction of this

Court.

IT IS FURTHER ORDERED ADJUDGED AND

DECREED that in the event the plaintiff fai!s or refuses

to return the minor children to the jurisdiction of this

Court or fails or refuses to turn the said childrén over to

the defendant at his request upon the operation of this

order transferring custody of said children to the defend-

ant the orders heretofore made for the support of said

children shall be and are hereby term‘nated until further

order of the Court.

s/ Charles W. White

' Judge

divorce journal 352 page 590

zat

_———_— _—— s

Cuyahoga Common Pleas

vs.

NORBERT FOX

s eres

: SS

‘Copy of Journal Entry

————

Che State of Ohio, |

CUYAHOGA COUNTY[" = I, EMIL J. MASGAY, Clerk of the

Common Pleas Court within and for said County, and in whose emnody the Files, Journals

and Records of said Court are required by the laws of the ¢ State of Ohio, to be kept, hereby |

certify that the foregoing is taken and copied from thé Journal__352 page 590

of the proceedings of the Common Pleas Court within and for said Cuyahoga County, and

that the i paid foregoing copy has been compared by me with the original entry on said Jour-

nal pata ah “E. 1960 . and that the-same is a correct transcript thereof.

Bu Testimony Whereof. I do hereunto subscribe my name officially

and affix the seal of said Court, at the Court House in the City of

Cleveland, in said County, |

day of September , A. D. 19 61_

ka J. MASGAY, Clerk of Courts.

aches teag Deputy Clerk

J /

~ App. 15

PLAINTIFF'S EXHIBIT 4

Filed 4-24 A.D. 1962

Case No. 2336

GEORGE E. SCHULZ, Circuit Judge

COUNTY OF CUYAHOGA

Cleveland, Ohio.

THE COURT OF COMMON PLEAS

Department of Domestic Relations

Room 50, Court House

E. Dana Brooks,

Director

April 23, 1962

Re: 706,725 Fox”

TO WHOM IT MAY CONCERN:

‘ . This is to certify that the attached photostatic copy

of the report of the Department of -Domestic Relations

upon the motion to change custody and control of the minor

children, Deborah Ann and Denise Mai e Fox, filed July

28, 1960, is a true and correct copy of the Department of

Domestic Relations relating to such motion. Further the

‘ records of this Court show that a notice of the recom-

mendation was delivered by certified mail to the plaintiff,

Florence J. Fox also known as Mrs. R. L. Webster, the

-same being certified on September 26, 1960, bearing

certified No. 808380, is a part of the Department’s file in

_ the above action.

The recommendation of the Department of Domestic

Relations was reduced to a journal entry and signed by

App. 16

the presiding judge, and appears of record in —

_ volume 352, page 590.

Yours very truly,

E. DANA BROOKS.

; E. Dana Brooks

EDB/jp ,

Enc.

THE COURT OF COMMON PLEAS — DIVISION OF

DOMESTIC RELATIONS

o Report to the Court -

Date: 7-28-60 Motion filed by DEFT. Nature: CHANG-

ING CUSTODY AND CONTROL FROM PLTFF. TO

DEFT. (C&V)

| Case Number: 706,725

FLORENCE J. FOX, 4345.Martin Dr., North Olmsted,

Ohio. Att’y.: Rosenthal, Bosch & Buckman, 1078 Union

Commerce bldg., MA-1-2400 |

Vs.

NORBERT FOX, 3871 Columbia rd. Employed:, Food

Town, Madison ave. Att’y.: Martin F. Franey, 727 Na-

tional Bank bldg., Pr-1-0157.

CHILDREN: rants Residing with:° Custody:

Deborah Ann 10-21-54 pltff.

Denise Marie 6-21-56 - .

App. 17

COURT ORDER: Decree for pltff. Date: 5-18-60

Journal: 351, page 517 Custody:

ALLEGATIONS: Deft. says that it is not in the best in-

terest of the children that they be

reared in. the Los Angeles area with

the pltff. and her new husband.

REPORT:

IDENTIFYING INFORMATION

MOTHER .

Birthdate: age 28,

born 6-1-32.

Birthplace: Cleveland, Ohio

Religious Affiliation:

Roman Catholic

Employed at: Unknown

Occupation: Unknown

Claimed avérage earnings:

Marital History:

No previous marriage.

lst husband Norbert Fox.

‘See data on father.

Ist wife

2nd husband, Richard Web-

ster, not previously mar-

ried. Date and place un-

known.

‘

FATHER

Birthdate: age 30,

born 2-25-30.

Birthplace: Cleveland,. Ohio

Religious Affi'‘ation:

Roman Catholic

Employed at: Fairview

Park Fire Dept.

Occupation: Fireman

Claimed Average Earnings:

States ‘$5700 gross earn-

ings per year,

Allied Vending Co. part

time. $30 net earnings per”

mo.

Marital History: No previ-

ous marriage.

Ist wife Florence,Jerman,

married 6-27-53 at St.

Mary’s Church, Olmsted

Falls. Divorced 5-18-60.

_ J351 p 517. Father not re-

married.

App. 18

STATEMENT OF LITIGANTS — FATHER

8-26-60. To 3871 Columbia Rd. Door openel but

could get no response.

°.2.60. To 3871 Columbia Rd. to interview father.

- response.

9-2-60. To 20795-Lorain Rd., Fairview, at Fairview

Fire Dept. Father not working this day. Left notice with

* .. Captain Willard for ee to come to D.D.R. on 9-6-60 for

interview.

9-6-60. Father interviewed at D.D.R. States parties

last lived together at 3871 Columbia Rd. when they began

to have marital problems. They both went tc Denison

Family Service Ass’n. and father is still working with the

agency. In 1958 the mother filed divorce action and he

agreed to leave the home. He roomed at the ‘home of a

Mrs. Mary Kuchta at 2034 Quail Ave. in Lakewood for ~~

six weeks. Father states he has not served in the armed

forces.

Said when parties lived together, mother insisted on

working and then they alternated on the care of the chil-

dren. Mother had a job at the Ludwid Restaurant and be-

gan to stay out until 4 or 5 A.M. / Felt there. was some-

thing fishy about the situation and he began to check on

the mother thru his friends. Mother said she was. with

girl friends and then he found mother was seeing a man

named Richard Webster. Mother knew this man, who had

dlso visited in their home. Then parties on the advice of

attorney separated to see if situation could be improved.

App. 19

States while separated he visited the children once a

week. Says he followed the mother to Richard Webster’s

Parents’ home one night and found the mother and Rich-

ard “loving” on the floor. He broke into the home and

mother said they were only sitting on the floor to watch

TV. He ordered the.mother to leave and go home. A few

days later he moved back into the home and on Seesed

25, 1958 mother filed the divorce action.

Claims in October 1958 the mother and children went

‘to California by plane.. Mother left a note on the table

stating she was going to California and would send her

“address later. He did not hear from the mother for 3 or

4 months and mother and children returned to Cleveland

in January 1959. In May 1959 mother returned to Cali-

fornia again with the children and remained there until’

May 1960. During this period parties corresponded and

he sent support during this period and has receipts to

verify it.

When mother returned to Cleveland in May 1960, the

parties’ were divorced. They came to an agreement about

the property and he agreed for mother to have custody of

the hildren and he would pay $120 per month for support.

Said he visited the children regularly from time of

divorce until July 31, 1960. Says the mother was remarried

on June 1, 1960 to Richard Webster in .Lakewood, Ohio

(but is not certain of place). Says Mr. Webster is em-

- ployed by Trans World Airlines in California and he re-

turned to his job. In July 1960 the mother asked him if

she could go to California with the children to live with

her husband. States he told the mother she could go but she

should not take the children.

App. 20

States he filed a Court action and mother was served

with the papers. On August 5, 1960 he went to Court with

his attorney and mother failed to appear. Mother’s attor-

ney appeared at the hearing and said he was no longer

representing the mother because mother went to California

by plane on July 31, 1960. Claime he received one letter

from the mother stating she was in California, had to leave

. in a hurry because present husband was sick and plans to .

-live there permanently. Said he has been sending support .

payment to R. L. Webster, P.O. Box 90091 Airport Sta-

tion, Los Angeles 45, California.

Said he filed the action and is snag for custody for

the following reasons.

1. Has a good home to offer at 3871 Columbia.

Rd. .Mr. Boye.on, present roomer, will move

to Florida in October or November, 1960.

2. He will have paternal grandparents, Mar-.

garet and Herman -Fox of 2163 Wyandotte

Ave. miove into his home and care for =

dren while he is employed.

3. Feels mother should see a peychiateist be-

cause mother comes first to herself and the

children come second.

4. Says. dllives: won't go to Catholic School ~

which mother agreed to do in the agreement.

If Children are with him they will ne St.

Richard School.

Children told him the mother “crabs” a lot

‘wl

App. 21 oa"

and want to know why they can’t live with _

him.

6. Mother moved the children to 8 different

places in the past year.

7. Children said while living: with the mother in

California, Webster lived in the ‘home and»

mother was not yet divorced or remarried.

9-14-60. Father again interviewed at 3871 Columbia

Rd. at time of home investigation. States mother returned

to California on August 4, 1960 just the day before the

Court hearing. Father showed various letters from the:

mother written from California, on two prévious trips

there during pendency of the divorce. One letter from the

' mother mentioned “it is now my turn to take care of the

baby”. Father also showed photostatic copies of letters he -

intercepted from Mr. Webster to the mother. This letter

implied the mother might have been pregnant and going

to a doctor. Father stated again that children said Mr.

‘Webster lived in the home with them and the mother, and

children mentioned :another little baby in the home.

PRESENT HOME OF CHILDREN WITH MOTHER

LOCATION AND DESCRIPTION — Mother reported by

father as living in California. Address listed by the father

is c/o R.L. Webster, P.O. Box 90091, Airport Station, Los

Angeles, 45 California. Out of Town custody dient made

en 9-6-60. ;

HOME PROPOSED BY THIS MOTION WITH FATHER

App. 22

LOCATION AND DESCRIPTION — 9-14-60. 3871 Co-

lumbia Rd., North Olmsted, Ohio. This is a five room two

bedroom single frame dwelling. Rooms clean and well fur-

nished.

OCCUPANTS OF HOME — Father and Mr. Boyeson,

roomer, occupy the home.

SCHOOL FACILITIES — Within normal distance of all

schools. |

RECREATIONAL FACILITIES — Good. Large yard pro-

vides adequate play area for children of this age.

CARE AND SUPERVISION GIVEN CHILD — Father

states he plans to have the paternal grandparents, Mar-

garet and Herbert Fox, move into the home and give care

to the children while he is employed. .

EVALUATION — A. Physical aspects of home good and

approvable.

. EVALUATION —B. References indicate children would

receive adequate care and super-

vision.

Mrs. Florence Jarman, maternal grandmother, inter-

viewed at. 4345 Martin Rd.. Nurth Olmsted, states: after

the litigants were divorced the mother and two children

lived in Avon Lake, Ohio after tne mother remarried. The

home in Avon Lake was sold and mother had to move out

on July 20th 1960. Mother and two ehildren returned to

the maternal grandmother’s home and stayed for 2 weeks.

Maternal grandmvther states she does not know the

App. 23 :

mother’s second husband’s name. Claims, “We are a cath-

olic family, do not recognize divorce, we didn’t want to

know anything about the remarriage and would not per-

mit mother to come to our home with her second husband.”

Says the maternal grandfather went to Ireland on

July 15, 1960. Claims when mother had to move suddenly

on July 20th, 1960, she permitted the mother and 2 chil-

dren to come to the home but refused the mother’s second

_ husband te come there. Claims she told the mother, “Leave

me out of everything and don’t discuss your affairs with

mé”. Two weé¢ks later, she woke up one morning and had

a telephone call from the airport stating the mother and

2 children had gone to California and left the maternal

grandmother's car at. the airport. Claims she does not

know the mother’s address in California. Said the mother

is an excellent mother, the stepfather adores the children

and mother. loves the children. States the father is a de-

ceitful person, his one love was money, father took in a

boarder only to get money and mother said father was

happy with one day visits with the children. Doesn’t know

why the father would ask for custody because he has no

one to care for them. Says mother agreed for father to

visit with the children twice a year and she would send the

children to Cleveland. Says for the interest of the children

it would be the best thing for the mother to live in Cali-

fornia.

9-2-60. Captain Willard of Fairview Park Fire De-

partment, interviewed at 20795 Lorain Rd. States father is

a hard worker, is steady, dependable and of good repute.

‘Says father has 2 jobs, works as a fireman and fills candy

machines on second job. Captain ugreed to give notice to

father to appear at D.D.R. for interview.

be |

App. 24

9-12-60. To 4596 Warren Rd. to interview Thonnings

family, father’s reference. Not at home. a

9-14-60. Mr. Frank Boyeson, age 79, father’s refer-

“ence, interviewed at 3871 Columbia Rd., North Olmsted,

Ohio. States he formerly lived at 3860 Columbia Rd. with

his wife and was a neighbor to the litigants for some

time. Said he visited in the home when litigants were get-

ting along well and says both parents loved their children.

States the mother was a good housekeeper, gave good

average care and children were happy with the mother.

Felt the mother was mentally weak. Claims the father

worked and was a good father. Said his wife died and on

July 22, 1960, he moved into the father’s home and pays

$10 a week for room and contributes towards the food.

States he planned to go to Florida for the winter but

since he heard the news about the devastation caused by |

hurricane Donna, he is not certain-he will go. ——

9-14-60. Mr. Nelson Brown, manager, interviewed at

23370 Lorain Rd., North Olmsted. Says the mother was

employed as a waitress. Ludwigs’ Restaurant at one time,

was 2 good worker and a nice person. Knows nothing - |

children in the restaurant for occasional visits and chil-

dren appeared to get adequate care. —

9-14-60. Donald and Laverne Therens, father’s ref-

erence, interviewed at 24046 Frank Ave.,. North Olmsted,

state they have known the father over 20 years and Mr.

Therens helped father get his job as a Fairview Park

Fireman, where he too is employed.- Said both parents

loved the children and when- mother worked nights the

father baby-sat with the children. Said several times

App. 25

father asked him to go with him to watch the mother and.

witness her behavior. Said the mother was “traipsing”

quite a bit, but never saw her with any specific person.

_ Father showed him a love letter written to the mother by

her present husband and father had intercepted the let-

ter. Stated father would give children adequate care if

granted custody.

9-14-60. To 3596 Warren Rd. to interview father’s

reference Llbonning family. Upstairs tenant reports fam-

ily gone away on vacation.

_ 9-16-60. _Mrs. Ann Martinka, father’s reference, in-

terviewed at 3491 Spencer Rd., Rocky River, Ohio. States

she was a former neighbor to litigants for about 4 vears.

Mother was a clean housekeeper, children were usually

with the mother who kept them clean and gave adequate

physical care. Both parents loved the children but father

" 9-16-60. To 2040 Wyandotte Ave., Lakewood to in-

terview former neighbors of litigants’. Not known to

present tenants.

9-16-60. Mrs. Julia Thorp, former neighbor, inter-

viewed at 2044 Wyandotte Ave., Lakewood. Said litigants

were her neighbors for 2 years and had their first child

while living there. Mother was a good average house-

keeper, canned, washed clothing, was a good mother -and

‘kept child clean. Both parents loved the child, father was

a hard working, good man and a devoted father.

9-16-60. To 2048 Wyandotte Ave., Lakewood, to in-

terview former neighbor. Present tenant just moted in.

about 1 year ago and litigants are not known to her.

App. 26

REPORTS OF OTHER COURTS AND SOCIAL

_ AGENCIES.

9-13-57 Family Service Ass’ n. 160251 active at Jack

Tremont.

3-7-58 D.D.R. 706, 725.

‘No additions! reports as of 8-8-60.

9-7-60. Checked Police Court records. Found fol-

lowing information.

No reports on father or mother.

Stepfather Robert L. Webster born 8-93-35 arrested

6-4-56 for traffic.

9-8-60. Took agency request form to social worker,

Mrs. Freelander of. Jackson Tremont Family Service

Ass’n. at 3201 for report to be sent to D.D.R. i see at-

tached).

9-19-60; Checked Probate ‘Court records on mar-

riage of mother to Richard Webster. Unable to verify.

9-16-60. Margaret and Harry (aka Herman) Fox,

paternal grandparents interviewed at 2163 Wyandotte

Ave., Lakewood, Ohio. Said the litigants lived down at

the other end of this street for two years. Said they al-

wavs helped them whenever they were needed, but kept

out of the litigants’ business, as much as they could. While

living in that area five years ago litigants had only the

first child Debbie. Mother gave adequate physical care

but ran around a good deal and left child in care of the

father. 3

Mother did not get along well with maternal grand-

App. 27

parents, felt she was treated like a stepdaughter and con-

stantly talked against them. Said this is the third time

the mother and children have been living in California

since parties were separated. Felt mother was upset

about something, even prior to the marriage and mother

said she went to a psychiatrist but it did not help her.

Said father is a “home body”, loves the children and

would give good care if granted custody. State mother

was’ not affectionate towards the father or the children

and father was mnch more affectionate with the children.

If father had custody they would be willing to help in any

way. They would be willing to care for children while

father is employed, but only on a temporary basis and

not a permanent basis.

FINANCIAL ASSETS AND OBLIGATIONS—FATHER

_ Home at 3781 Columbia Rd., North Qmsied, for-.

merly jointly owned. Cost $18,000, mortgage of $12,000

still exists payable $103 per month. At time of divorce

mother deeded her share of the home to the father. F: ther

states he borrowed $4,000 from the paternal grandparents,

paid the mother $2500 and is paying $100 per month on

$1300 still due to the mother on the property settiement.

- Father owns a car. Ford stationwagon 1951—¢lear of debt.

FINANCIAL ASSETS AND OBLIGATIONS—MOTHER

Unknown.

SUPPORT — Father claims. he has receipts to verify he

_ is paid up to date on $30 per week support.

App.28 .

‘SUMMARY AND INVESTIGATOR’S CONCLUSIONS.

A. Father’s proposed home is approvable and

references indicate children would receive

adequate care and supervision.

B. Out of Town Custody Investigation request

sent to Los Angeles, California on 9-6-60,

far report on mother’s home and care of the

children.

C. According to references, both parents ask

for custody.

H. Morris/mh

9-21-60 Mr. Franey, counsel for deft. appeared

alone. Personal service was had on the mother on motion

to modify custody on July 30, 1960 at which time there was

a motion by the mother for permission to take children out

of the jurisdiction pending, which was filed July 20, 196v.

The mother’s counsel] has withdrawn because she left Cleve- -

land while her motion and this motion was pending taking

the children with her without permission from the Court.

In the opinion of E. D. Brooks the mother is legally

in Court both on her motion and on the motion of the

father.

A letter was-received from the mother by the father

dated 8-9-60 stating that she was in Los Angeles oo

only a Post Office Box No. 90091.

E. D. Brooks called Trans World Airlines Cleveland .

App. 29

office and Mr. Dupuis WI 1-9700 ania that the step-

father, Mr. Webster, had formerly worked for them in

Cleveland, but the only information as to his present place

of employment for the same Airline would be given by

T.W.A. Industrial Relations office, Mr. J. P: Clifford

Employment office Hangar 12, New York International

Airport. or T.W.A. Employment office, 10 Richards Rd.,

Kansas City, Missouri.

In view-of the fact that’ the mother was legally in

Court by reason of service and her pending motion to

modify, a recommendation was made that custody be re-

moved from her if she failed to return the children to

Cleveland by 10-1-60 and if she did not turn over the chil-

dren to the father the support order was to be terminated

as of that date. Copy mailed to mother by certified mail

808,380.

9-26-60 Return receipt No. 808,380 received _show-

ing that the notice was received by Mrs. Robt. Webster

‘mother)

NO MOTION FOR ORAL HEARING FILED, Jour-

nal E:.try prepared,in accordance with recommendation

and notice and submitted to Court for signature.

DEPARTMENT OF DOMESTIC RELATIONS

NOTICE OF RECOMMENDATION

Counsel and parties wil]! take notice that under the

provisions of Rule 23/(d) of the Rules of the Court of

Common Pleas of Cuyahoga County, Ohio, the report ‘and

recommendation of the Department of Domestic Relations

will be approved 7 the Court without an oral ————

App. 30

thereon before the Court, unless a motion for such oral

hearing is filed within five (5) days from the date of no-

tice of such recommendation.

The motion in the within action will be held until Oc-

tober 4, 1960 and in the event no motion for an oral hear-

ing is filed prior to that date, an entry will be submitted _

to the Court for signature.

Case No. 706725 Date 9-21-60

Name Fox

THE DEPARTMENT OF P°“FSTIC RELATIONS

, By E. Dana.Bruuks |

JOURNAL ENTRY TO BE RECOMMENDED

This matter coming on to be heard upon the motion

of the Pitff to move ehldn from Cuyahoga Ccunty, and -

m: tion of Deft to modify custody the Court being fully

advised in the premises, and having received the report -

and: recommendation of the Department of Domestic Re-

lations finds that service was had according to law and

that a notice of the recommendation was delivered to both

parties or their counsel on 9-21-60 and that nc motion for

an oral hearing before the Court has been filed pursuant to

Rule 23/d) of the rules of this Court, and that therefore

the parties are found to have waived their right to any

‘ further Learing thereon.

The Court further finds that by order of this Court

heretofore rendered. the custody of the minor children of

_the parties was awarded to the Plitff and that the Deft was

ordered to pay the sum of $120 per mo for support of the

App. 31

minor children. The Court further finds that the Pitff has

removed the chldn from the State of Ohio contrary to the

provisions of the spptation agreement and decree.

The Court further finds that the Delinddi is fully

paid under said order.

The — further finds that by reason of the changed

conditions znd circumstances since the date of the previous

order, the same should be modified.

WHEREFORE. IT IS ORDERED ADJUDGED AND

DECREED that the motion of the Pltff for permission to

remove the children from the County of Cuyahoga be and -

is herehy denied.

DECREED that the plaintiff shall return the minor chidn

to the County of Cuyahoga and the State of Ohio on or

before October 4, 1960 and in the event she fails or refuses

to return the said chldn to the jurisdiction of the Court

the custody of the minor chldn Deborah Ann- born Oct. 21.

1054, and Denise Marie, born June 21, 1956, be and is

hereby vranted to the defendant who is ordered to return

. the chldn to the jurisdiction of this Court.

IT IS FURTHER ORDERED ADJUDGED AND

DECREED that in the event the plaintiff fails or refuses

to weturn the minor chldn to the jurisdiction of this Court

or fails or refuse- to turn the sai chidn over to the de-

fendant at his request upon the operation of this order

transferring custody of said chldn to the defendant the

orders heretofore made ‘for thes ipport of said chldn shall

be and are hereby terminated until further order of the

Court. °

App. 32

Copy to: Herbert Rosenthal, atty for pltef, 1078 Union

| Com. Bldg. cS ee

Copy to: Pitff, Mrs: R. L. Webster, P. 0. 90091, Air-

port Station, L. A. 45, California by cohigied mail :

IN°THE SUPERIOR COURT OF THE STATE OF

- CALIFORNIA IN AND' FOR THE COUNTY OF

_ . * LOS ANGELES

DEPARTMENT NO. 95 HON. ALLEN MILLER,

| | , JUDGE —

H. C. 75853.

| In the Matter of the Application of

4 NORBERT FOX

For Writ of Habeas Corpus.

REPORTER'S TRANSCRIPT

March 6, 1961

“APPEARANCES: 7

For the Petitioner: |

) WALTER N.. ANDERSON

Attorney at Law.

3325 Wilshire Boulevard

Los Angeles 5, Califprnia- —

App. 33

_ For the Respondent: ee St

co V. LANE KNIGHT

_ Attorney at Law

- 504 Main Street —~

El] Segundo, California

Anne F. Smith,CS.R. . *

Official .Reporter

1934 Hospital Place

Los Angeles 38, California

Tr. 34:

- received in evidence.

I find in this case that both parties would be, if I

had the matter of custody before me in de novo that I —

would find both parties are fit and proper parties to have

the custody of. these children.

However, the situation involved in this case is a mat-

ter primarily of jurisdiction. We have a valid order of

the Court of Cofnmon Pleas of Ohio, which is a good order,

in my mind, 4 valid order, and this is primarily jurisdic-

tional, ard they did have jurisdiction over the parties at

the time it made that order, and by reason of comity,

and otherwise, I.am going to grant .this writ of habeas

corpus, : ' —

I am going to stay execution’ thereof for three days

and I am going to make an order, specific grder, that the

children are not tobe removed from their present residence

or out of the county of Los Angeles pending the three day

stay of execution. ;

_ App. 34

Jt is ‘my ‘hope that the parties themselves may make

gome arrangements mutual to themselves for right of visi-

tation by the parties. I think they are interested in the

* welfare of the children and I think some arrangements

should be made voluntarily in carrying out somewhat the

original agreement which was made with respect to cus- —

tody of these children by. way of right. of visitation of both

parties, but the writ is granted and stayed three days.

“MR. ANDERSON: Your Honor, when would this

stay expire? :

‘EXHIBIT 5

Filed 4-24 A.D. 1962,

Case No. 2336

- GEORGE E. SCHULZ,

Circuit Judge

. 6

_ IN THE DISTRICT COURT OF APPEAL OF THE

STATE OF CALIFORNIA —

SECOND APPELLATE DISTRICT

: DIVISION THREE

IN THE MATTER OF THE APPLICATION OF

NORBERT FOX, Petitioner, ae

for Writ of Habeas Corpus.

ond Civil No. 25374

App. 35

PETITION for Writ of Supersedeas. Denied.

For Petitioner NV. Lane Knight.

For Respondent: Walter N. Anderson.

Florence Webster, who ‘was respondent in a writ of

- habeas corpus issued by the Superior Court of the State of

California in and for the County of Los Angeles, has ap-

pealed from an order of that court which granted™to

Norbert Fox, hereafter called respondent, a writ of habeas

_ corpus under which Florence Webster, hereafter called the

appellant, is compelled to deliver custody of the minor .

children of the parties to the respondent petitioner in the

habeas corpus matter.

We issued an order to show cause why the writ of

supersedeas should not issue. We have examined the rec-

ords of the proceedings before the. superior court which

have been submitted to us. From those records we are

convinced that there is no substantial question to be pre-

sented upon the appeal and that a writ of supersedeas

should not issue.

The order to show cause is discharged and the writ

of supersedeas’ is denied. '

NOURSE, J. pro tempore.

- We concur:

SHINN, P.J.

FORD, J.

™

‘

App736-—"

[Civ. No. 25374, Second Dist., Div. Three. Mar. 23, 1961.]

- In re NORBERT FOX on Habeas Gorpus. .

() Appeal—Supersedeas.— Where no substantial question

is presented on appeal, a writ of supersedeas should not

issue. .

_. PETITION for a writ of supersedeas. Writ denied.

V. Lane Knight for Petitioner.

Walter N.. Anderson for Respondent.

NOURSE. J. pro tem.*—Florence Webster, who was

respondent in a writ of habeas corpus issued. by the Su-

perior Court of the State of California in jand for the

County of Los Angeles, has appealed from an order of

that court which granted to Norbert Fox, hereafter called

respondent, a writ of habeas corpus under which Florence

Webster, hereafter called the appellant, is compelled to

deliver custody of the minor children of the parties to the

respondent, petitioner in the habeas corpus matter.

We issued an order to show cause why the writ of

supersedeas ‘should not issue. We have examined the rec-

‘ords of the proceedings before the superior court which

have been submitted to ‘us. ‘') From those records we are

convinced that there is no substantial question to be pre-

sented upon the appeal and that a writ of supersedeas

should not issue.

(See Cal. Jur.2d, Appeal and Error, § 231.

Mek. Dig. Reterence: "' Appeal and Error. § 425.

1 Advance Report Citation: 183 A.C.A. 839, $42.

; g

App. 37

The order to show cause is discharged and the writ

of supersedeas is denied. ,

Shinn, P. J., and Ford, J., concurred.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.