Tompkins v. Garlock

Schroeder, J.,

dissenting: An important conflict of laws question in child custody cases is presented for decision upon the facts herein. If the court intends to make the child’s domicile the exclusive consideration for the determination of state jurisdiction in child custody matters, it should frankly say so and overrule all decisions inconsistent therewith.

*431Until this decision a thread of consistency could be found in the cases previously decided, despite the language used assigning the reasons in some of the decisions. (See, 10 Kan. L. Rev. 221, “Child Custody and the Conflict of Laws.”) The pivotal case of Kruse v. Kruse, 150 Kan. 946, 96 P. 2d 849, indicates the dual approach the Kansas court has heretofore taken to determine jurisdiction in child custody matters. (See, 5 Kan. L. Rev. 77, “Full Faith and Credit to Child Custody Awards.”) Following the Kruse case Leach v. Leach, 184 Kan. 335, 336 P. 2d 425, and cases which follow its reasoning rely upon 2 Beale, Conflict of Laws, § 144.3, quoted in Kruse, which indicates that a child’s domicile changes with that of the parent in whose custody it has been placed, and jurisdiction to give the custody of the child to one parent or the other is controlled by the domicile of the child.

The Kruse case also quotes 2 Beale, Conflict of Laws, § 147.1, and points to tibe fact that the question of jurisdiction in this class of cases received careful consideration in Wear v. Wear, 130 Kan. 205, 285 Pac. 606, 72 A. L. R. 425, which is commonly regarded as establishing the Kansas Rule. (See, Ehrenzweig, Conflict of Laws, Part One, § 87, pp. 281, 284, discussing the Kansas Rule relating to foreign custody decrees.)

Ehrenzweig argues that in the custody area concepts of full faith and credit and domicile are particularly unworkable and although courts use traditional domicile-res language, many have taken the earlier Kansas position that the state under its power as parens patriae may always do what is best for the child. He cites the Wear case as establishing the Kansas Rule. The problem is well presented and discussed in 1 Kan. L. Rev. 165, “Child Custody,” by Quintín Johnstone.

In Wear v. Wear, supra, after reviewing numerous authorities, it was said in the opinion:

“. . . in this state, and under our statutes as they now exist, a judgment and decree in an action for divorce rendered by the court of another state shall be given the same force as if rendered by a court of this state, ‘and shall, as to the status of all persons, be treated and considered and given force the same as a judgment of the courts of this state of the date which said judgment bears.’
“However, the jurisdiction of the trial court in this proceeding to determine what disposition should be made of the child between the petitioner, on the one hand, and the respondent, on the other, did not depend on the domicile of the child, nor on the domicile of either of its parents. (Finley v. Finley, 240 N. Y. 429.) The disposition of a child in a case such as this should depend on the law of the place where the child is found rather than the law of the place *432from whence it came. In a habeas corpus proceeding between parents for the custody of the child the rights of the parents are to be considered, but the interest of the state, in its position as parens patriae to all minors within its jurisdiction, is ever present. As between the parents themselves, they may be bound by a former adjudication (see Avery v. Avery, 33 Kan. 1, 6, 5 Pac. 418; In re Hamilton, 66 Kan. 754, 71 Pac. 817), but the state, in its relation of parens patriae, looks to the welfare of the child at the time the inquiry is being made, and for that purpose former adjudications between parents is evidenciary only and not controlling. . . .” (p.224.)

Decisions following the Wear case are indicated by White v. White, 160 Kan. 32, 159 P. 2d 461; Moloney v. Moloney, 167 Kan. 444, 206 P. 2d 1076; and In re Thompson, 178 Kan. 1, 282 P. 2d 440; and see, Price v. Price, 187 Kan. 292, 356 P. 2d 1013.

It must be recognized in the Price case that the father had custody of the child under a Delaware decree and the mother surreptitiously removed the child from the state of Delaware and brought it to Kansas. In the father’s action for a writ of habeas corpus in Kansas the mother did not assert the child’s domicile, which was that of the father in Delaware, as a controlling jurisdictional factor. This would not have been to her advantage in seeking affirmative relief on the ground of changed conditions. Neither does it appear that the father asserted the child’s domicile as a controlling factor to defeat the mother in the trial court. Both parties relied upon Wear v. Wear, supra, for determination of the issue confronting the trial court. The father prevailed and was granted a writ, and on appeal the mother (appellant) conceded the father was entitled to custody of the child, which was the ultimate issue before the trial court under the pleadings. All she sought on appeal was modification of visitation rights. On this point it was held the trial court properly refrained from making any orders relating to the visitation rights of the appellant, that being a matter for the Delaware court wherein the valid and subsisting custody order stood at the time of the hearing.

On the facts here confronting the court the two oldest children were legally brought to Kansas in June, 1960, by the father and they remained in Kansas. As a result of the mother’s application for a writ of habeas corpus both parties and the two oldest children were personally before the district court of Johnson County, Kansas. Under these circumstances the trial court had jurisdiction, pursuant to Wear v. Wear, supra, and Moloney v. Moloney, supra, to determine the issue of child custody raised by the father in his response to the mother’s application for a writ of habeas corpus.

*433The appellee (father) in the instant case may have conceded too much in his brief when he said: “Appellant is correct in her statement that jurisdiction of the subject matter of child custody depends upon whether the children in question were in fact domiciled in this state at the time of the commencement of the action below.” Assuming, without conceding, this concession binds the appellee, it nevertheless does not undermine the decision of the trial court in my opinion.

The case of State ex rel. Larson v. Larson, 190 Minn. 489, 252 N. W. 329, was cited with approval in Kruse v. Kruse, supra. There the parents were domiciled in the state of Iowa, where they were divorced in 1931. The decree awarded the custody of the minor child alternately to each parent for six months. Thereafter the mother established her domicile in Minnesota. In accordance with the decree the child spent six months of each year in Iowa with the father and six months of each year in Minnesota with the mother. In 1933 at the expiration of the third six-months period with the mother, she refused to surrender the child to the father. In the habeas corpus proceedings which followed the lower court awarded custody of the child to the mother and this decree was affirmed. After giving these facts the Kruse decision quotes the Larson opinion as follows:

“ ‘Applying the above-discussed principles to the case at bar, we conclude that the minor child was domiciled in Minnesota at the time of the commencement of this action. After the Iowa divorce the mother changed her domicile to Minnesota. The minor’s domicile is that of the parent to whose custody it has been awarded. So for each of the six-months periods that the mother had the custody the minor’s domicile was in Minnesota. When this action was commenced the child had been in Minnesota for a few days over the six-months period, but had not been returned to Iowa. The domicile would not be reestablished in Iowa until the minor had returned there.’” (p. 950.) (Emphasis added.)

In my opinion the principle of law above stated in Larson and approved in Kruse should control the decision herein.

By the undisputed facts and the evidence of both parties their legal domicile in the state of Texas terminated within a matter of days following the entrance of the decree of divorce, when all four children and both parties hereto discontinued residing within that state. The mother went to Maryland with the four children which then became her legal domicile. When the appellee assumed his right to the custody and brought the two oldest children to his *434home in Johnson County, Kansas, the children then became domiciled in Kansas and their former legal domicile in the state of Maryland terminated. Any question that the legal domicile of the children reverted to the state of Maryland is completely negated when the mother terminated her legal domicile in August, 1960, and moved to the state of Washington. Now, could it be said that the children here involved were legally domiciled in the state of Washington, within which state they had never been or resided in the entirety of their lifetime? The mothers application for the writ of habeas corpus gave her address to be in the state of Washington.

The mother’s complaint of the claimed failure of the father to obtain a modification of the Texas decree is refuted by the fact the Texas court lost all jurisdiction and power to modify the decree because neither of the parties nor their four children were ever domiciled in Texas for more than a few days after the decree was entered. (Kruse v. Kruse, supra; and Leach v. Leach, supra.) Furthermore, the father was unable at the termination of his summer custody to obtain a modification of said decree in the courts of the state of Maryland, since the mother and none of the children were legally domiciled within the jurisdiction of any courts of that state. The evidence discloses that the father was never informed as to the whereabouts of the mother and his two youngest children residing with her, until the filing of the instant petition for a writ of habeas corpus.

Therefore, from the moment the father obtained custody in June, 1960, until the date of the hearing in the instant case, nothing occurred to change the legal domicile of the oldest two children from the state of Kansas, and for that reason the trial court had full jurisdiction to inquire into the rights of custody concerning these children and make an appropriate order to protect their best interests. It is clear the trial court did not refuse to extend full faith and credit to the Texas divorce decree, but heard only evidence relative to changed circumstances and conditions since the entry of that decree.

It is respectfully submitted the trial court should be affirmed.

Jackson, J., joins in the foregoing dissent.