
    CUSTODY OF CHILD OF DIVORCED COUPLE.
    [Common Pleas Court of Greene County.]
    Philip Edward Keenan, by His Next Friend, Herbert Allen Keenan, v. Mattie Isabel Keenan.
    
    Decided, May, 1906.
    
      Husband and Wife — Parent and Child — Decree of Divorce Granted in Another State without Notice — Does not Determine Custody of Child brought to this State, When — Giving Faith and Credit to Judgments by Courts in Other States.
    
    1. A decree of divorce granted on a supplemental answer and cross-petition of which the plaintiff had no notice, while it may serve to terminate the marriage contract, does not determine rights either as to alimony or the custody of children.
    2. A petition by a divorced husband for possession of his minor child of tender years, in accordance with the terms of a Missouri decree giving him a divorce and custody of the child, will not be granted as against the mother who is in possession of the child, and who testifies that she fled from Missouri to this state on account of the ■ aggressions of the husband, and that she had no notice of the filing of the cross-petition under which the divorce was granted, and who appears to be a woman of good character and amply able to care for the child.
    
      
       Affirmed by the circuit court without report.
    
   Kyle, J.

Herbert A. Keenan in this action seeks to recover the possession and custody of his minor child, Philip Edward Keenan, from the defendant, Mattie Isabel Keenan.

Herbert A. Keenan and the defendant, Mattie I. Keenan, intermarried in May, 1900, in Greene county, state of Ohm. In 1902 or 1903 they removed to the state of Missouri. In May, 1905, the defendant, Mattie Keenan, filed her petition in the Circuit Court of Jasper County, state of Missouri, against Herbert A. Keenan, asking for divorce on the grounds of extreme cruelty and asking for the custody and care of the said minor, Philip Edward Keenan.

Philip Edward Keenan is the only child of the marriage of Herbert A. Keenan and Mattie Keenan, and is now about five or six years of age. A summons was duly issued and served upon Herbert A. Keenan, notifying Mm of tbe pendency and the prayer of the petition of Mattie I. Keenan. Herbert A. Keenan at the June Term of said Circuit Court of Jasper County, filed a general denial to the allegations of the petition. At the same term he filed an amended answer and cross-petition to the petition of his wife for divorce, making a general denial, and by way of cross-p.etition asked for divorce from the wife on the ground of cruelty and neglect. At the November Term, 1905, Herbert A. Keenan filed an amended answer and cross-petition, wherein he made a general denial of the allegations of the petition and set out further facts of cruelty, and asked for a divorce and the care and custody of their minor child.

From the certified record of the case it was continued until the June Term, 1906, when said Herbert A. Keenan again filed a supplemental answer and cross-bill to the petition of his wife wherein he denied the allegations of the petition, and averred that Mattie I. Keenan for more than one year prior to the 15th of May, 1906, without cause, absented herself from her husband, and asked divorce and care and custody of the child. On the 25th day of June, 1906, the action of Mattie Isabel Keenan against Herbert A. Keenan came on for hearing upon the plaintiff’s petition and the defendant’s supplemental answer and cross-bill, and Mattie I. Keenan failing to appear and plead, the court found the allegations of ITerebert A. Keenan’s sup,plemental answer and cross-petition as confessed to .be true by Mattie I. Keenan, and thereupon decreed Herbert A. Keenan a divorce from his wife on his supplemental answer and cross-bill, and further adjudged to him the care, custody and control of Philip Edward Keenan without any interference on the part of Mattie I. Keenan.

The record does not disclose that any summons, service or notice was ever given to Mattie Keenan of the filing and pendency of the supplemental answer and cross-bill of Herbert A. Keenan against her. Herbert A. Keenan comes into court and presents this record and judgment of the Circuit Court of Jasper County, Missouri, and asks this court for an order directing that Mattie I. Keenan turn over to him their child Philip Edward Keenan.

From the evidence it appears that on August 5, 1905, while the suit for divorce was pending in the Circuit Court of Jasper County, Missouri, that the defendant herein took her child and came to the home of her father in this coxmty, where she has continued to reside and maintain her child.

From the evidence it further appears that the defendant in the divorce suit served notice on the plaintiff’s attorney of the filing of a copy of the supplemental answer and cross-bill.

The fact that this notice was given, and is provided for in Section 586 of the Revised Statutes of Missouri, would seem to imply that the laws of Missouri require some notice to be given. While in fact there is no evidence to show the discharge of the plaintiff’s attorney and the, defendant had a right to rely that the counsel of record was still counsel of plaintiff, yet this oral testimony could not be supplemented to the certified transcript of the proceedings to make it complete. The transcript fails to show that any service or notice of any bind was given, either to the plaintiff or the plaintiff’s counsel, and the testimony of defendant in this action is that she in fact received no notice of any kind.

Without reviewing all of the authorities which I have examined, cited by counsel on both sides, suffice it to say that from the face of the record it appears that the filing .of the supple- ■ mental answer and cross-petition in the divorce suit was without notice to the defendant herein. As she was given no opportunity to make any defense thereto the cause of action stated in the supplemental bill arose subsequently to the filing of the petition of the plaintiff in the divorce proceedings, and any action of the court based upon such supplemental bill without notice would be a proceeding wherein 'the defendant herein did not have her day in court, and the judgment would extend no further than a proceeding in rem, which might have jurisdiction, which is not here determined, to annul the marriage contract, but would have any jurisdiction to determine the rights of this defendant either as to alimony or the custody of the child.

This view of the case is giving the judgment of the court of •Missouri the same faith and credit as would be given to any judgment or proceeding in this state under the same procedure. Practice in this state so far as I have been able to determine is that service of summons or some notice must be made on a cross-bill to give the court the right to enter a judgment thereon. It is my opinion that the judgment of the Missouri court should be given the same validity and effect as any judgment in this state, and no more, even if the holding of the Missouri court should be that it acquired jurisdiction under, the certified proceedings to determine the custody of the child and bind the defendant herein.

The further ground on which I base my judgment in denying the relief herein sought, is that the question involved is the custody of the child. The interests of the child should be regarded and considered above and beyond the rights of the parents. In view of the fact that the court of Missouri awarded the defendant herein temporary custody of the child after the plaintiff, Mrs. Keenan, in the divorce proceedings had set forth the alleged cruelty and neglect of the defendant herein toward the child, and that the court at a subsequent term awarded the custody of the child to the father without any further hearing and without any further evidence or without any opportunity for the defendant herein-to prove her ability and right to keep the child, would seem to warrant this court under the proceedings herein, to consider the interests of the child regardless of the court of Missouri. The practice followed in this state that a child of tender years, even though the mother is guilty of wrong, involving her moral character, may still be given to the custody of the mother. In this instance under her evidence she fled from the state of Missouri by reason of fear of her husband, and has not been charged with any act involving her moral character or standing in the community and should not be deprived of her child of tender years without an opportunity to be heard.

Under the evidence heard the father proposed to take the child and give it to his two sisters, the mother proposes to keep the child with her, and live with her mother. She is amply able to furnish the child with whatever may be required for its comfort and welfare. Looking to the interests of the child of the tender age of the one here involved, there is no doubt in the mind of the court that it should be left with the mother.

W. L. Miller, for defendant.

It is true that a line of authorities cited by the plaintiff would give the right under the judgment of the court, of Missouri to the father to the custody of the child. From the statement of the counsel I would rather infer that the divorce case was tried and determined by the court upon the petition and answer and first and second answer and cross-petition of the defendant before defendant herein left the jurisdiction of the state of Missouri. While that does not appear in the transcript of the proceedings, yet if it is true and the case was finally submitted, it onty makes stronger the claim of the defendant herein to have notice of an3r further proceedings in that case, and to have an3r such further proceedings without any such notice, ought not to bind the defendant herein as to the custody of her child. This conclusion has been reached with some difficulty and principally upon the ground that what the court does is for the interests of the child whose possession is herein involved. So far as the evidence goes the statutes of Missouri have not been produced and the court might be justified in- applying the same rule to a proceeding in the Missouri court as if it were had in this state and applying that rule the court was without authority to determine the custody of the child upon the cross-petition o.f the defendant.

lidding these views the petition will be dismissed and the child remanded to the custody of its mother.  