Batchelor v. Fulcher

• Decision Date: 02 June 1967
• Citation: 415 S.W.2d 828
• Parties: Mary Frances BATCHELOR, Appellant, v. Donald E. FULCHER, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 828

415 S.W.2d 828

Mary Frances BATCHELOR, Appellant, v. Donald E. FULCHER, Appellee.

Court of Appeals of Kentucky.

June 2, 1967.

Dissenting Opinion June 9, 1967.

As Modified June 13, 1967.

Earle M. Nichols, Nichols & Nichols, Madisonville, for appellant.

Carroll S. Franklin, Franklin & Gordon, Madisonville, for appellee.

MONTGOMERY, Judge.

This contest is between Mary Frances Batchelor, the mother, and Donald E. Fulcher, the father, over the custody of their children, Donald Wayne Fulcher, born September 28, 1960, and Carla Gaile Fulcher, born November 5, 1962. The action by the mother was dismissed on motion of the father, challenging the jurisdiction of the Hopkins Circuit Court, on the ground that he had obtained an order for the children's custody in a divorce action granted in Indiana.

The mother, on appeal, contends that the Indiana judgment was void and that even if not void, it should not be enforced in a child custody case. The latter point is decisive.

The parties were married on November 7, 1959. Both are natives of Hopkins County. During part of the period of their marriage they lived in Kentucky. Then they lived in Evansville, Indiana, for about two years before moving to California in January or February 1964. Appellant separated from her husband in California in November 1964, and went to Florida, taking the children with her.

Fulcher followed her to Florida, stayed a few days, obtained the children without her consent, she claims, and returned to Hopkins County. In January of 1965, Fulcher took the children to California. He returned to Kentucky in February, and after a short stay he went to Gary, Indiana, taking the children with him.

In March 1965, the parties met in Hopkins County. The son was turned over to appellant. She later took him to Florida. The daughter had been left in Indiana. On July 2, 1965, the father took the son from the mother in Florida by force, she claims, and returned to Indiana.

On February 8, 1965, the mother sued for divorce in Lake County, Florida. On April 2, 1965, the father filed an answer in that action together with waiver of notice sworn to before a notary public. On July 14, 1965, the mother was granted a divorce. The question of custody of the children was not raised or adjudicated in the Florida action.

On July 22, 1965, the father sued for divorce and custody of the two children in Lake County, Indiana. The mother was proceeded against by publication as a nonresident. She disclaims any notice or knowledge of this proceeding. Shortly after September 21, 1965, the return day for the nonresident process, the husband was granted a divorce and the custody of the two children, who were with him.

On the same day that appellee sued for divorce, July 22, 1965, appellant married her present husband, Raymond Batchelor. They have lived in Hopkins County since shortly after their marriage.

Appellant and her husband testified that in July 1966, appellee called appellant and told her to come to Gary, Indiana, and get the children. Appellant said that appellee assigned as the reason that he was having trouble with his bride of three weeks. Appellant and her husband said that they arrived in Gary about 8 a.m., and stayed until about 2 p.m. During this time appellee and his bride were preparing the children and their clothes to return to Kentucky with appellant and her husband. Appellee claims that the children were taken from his home without his knowledge or consent. The children have remained with appellant in Kentucky since July 3, 1966.

Appellant filed this action July 7, 1966, by which she seeks to have the custody awarded to her. Personal service was had on appellee when he returned to Kentucky to get the children.

Three questions are inherent in this case: Was the Hopkins Circuit Court bound to give full faith and credit to the Indiana custody order in the absence of personal service on the mother? Did the Hopkins Circuit Court have jurisdiction to determine the custody of the children? and, if so, what is the controlling factor in such determination?

In May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221, the husband obtained a divorce and an order for the custody of the children in Wisconsin without obtaining personal service on the mother who was then in Ohio. Afterward, the husband sought to obtain the custody of the children from the mother in a proceeding in Ohio. He relied on the Wisconsin custody order.

In rejecting the Wisconsin custody order, the United States Supreme Court, speaking through Mr. Justice Burton, stated and answered the question thus:

'* * * we have before us the elemental question whether a court of a state, where a mother is neither domiciled, resident nor present, may cut off her immediate right to the care, custody, management and companionship of her minor children without having jurisdiction over her in personam. Rights far more precious to appellant than property rights will be cut off if she is to be bound by the Wisconsin award to custody.

"It is now too well settled to be open to further dispute that the 'full faith and credit' clause and the act of Congress passed pursuant to it do not entitle a judgment in personam to extraterritorial effect if it be made to appear that it was rendered without jurisdiction over the person sought to be bound.' Baker v. Baker, Eccles & Co., 242 U.S. 394, 401, and see 403, 37 S.Ct. 152, 155, 61 L.Ed. 386 (391, 392); Thompson v. Whitman, (U.S.) 18 Wall. 457, 21 L.Ed. 897; D'Arcy v. Ketchum, (U.S.) 11 How. 165, 13 L.Ed. 648.

'In Estin v. Estin, 334 U.S. 541, 68 S.Ct. 1213, 92 L.Ed. 1561, 1 A.L.R.2d 1412, supra, and Kreiger v. Kreiger, 334 U.S. 555, 68 S.Ct. 1221, 92 L.Ed. 1572, supra, this Court upheld the validity of a Nevada divorce obtained ex parte by a husband, resident in Nevada, insofar as it dissolved the bonds of matrimony. At the same time, we held Nevada powerless to cut off, in that proceeding, a spouse's right to financial support under the prior decree of another state. In the instant case, we recognize that a mother's right to custody of her children is a personal right entitled to at least as much protection as her right to alimony.

'* * * We find it unnecessary to determine the children's legal domicile because, even if it be with their father, that does not give Wisconsin, certainly as against Ohio, the personal jurisdiction that it must have in order to deprive their mother of her personal right to their immediate possession.'

See also Ford v. Ford, 371 U.S. 187, 83 S.Ct. 273, 9 L.Ed.2d 240; People of State of New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133.

The decree of the Indiana court did not validly deprive her of a right to seek the custody of her children in the Hopkins Circuit Court.

Three concurrent bases of jurisdiction have generally been recognized in cases of this character. They are: domicile of the child in the state; presence of the child in the state; and personal jurisdiction over the contending parties. See Restatement of the Law, Second, Conflict of Laws, Proposed Official Draft, May 2, 1967, Section 79, Pages 294--300, for a full discussion and citation of authorities. It is therein observed that: 'In point of fact, each of these bases of judicial jurisdiction provides a reasonable and suitable basis upon which a court may proceed in a proper case.'

In the instant action there are present two bases for jurisdiction: presence of the children in Hopkins County, Kentucky, and an action brought by the mother with personal service on the father. The Hopkins Circuit Court had jurisdiction to determine the custody of the children.

Having resolved the first two questions, the answer to the third is easy. The welfare of the child is always the overriding consideration in the determination of its custody. This is the reason for the rule stated in May v. Anderson, supra. Wells v. Wells, Ky., 406 S.W.2d 157, and 412 S.W.2d 568; McLemore v. McLemore, Ky., 346 S.W.2d 722, 92 A.L.R.2d 691.

Accordingly, it was error to dismiss appellant's action. The Chancellor should have heard testimony and determined which party in the best interest of the children should have custody. This is a factual issue to be resolved by the Chancellor. Brengle v. Hurst, Ky., 408 S.W.2d 418. Cf. Walden v. Johnson, Ky., 417 S.W.2d 220.

Judgment reversed.

WILLIAMS, C.J., and MILLIKEN, PALMORE, and STEINFELD, JJ., concur.

HILL and OSBORNE, JJ., dissent.

OSBORNE, Judge (dissenting).

The majority opinion holds we are not required to give full faith and credit to a child custody decree entered in Indiana, where the mother was not personally served, even though the children and father were all domiciled there and the children personally present in Indiana when the decree was entered.

We attempt to justify our action by saying since the mother and children are presently before this court and the best interest of the children seem to us to demand it, we have jurisdiction to disregard the Indiana decree and proceed as if it were never entered. I do not believe this is a proper and accurate statement of the law generally or of the law of this state. It is nothing more than a formal adoption of the rule of 'seize and run.'

The central problem is whether the Indiana judgment should be accorded full faith and credit by the courts of Kentucky and incident to a solution of this problem is the question of jurisdiction. If Indiana had jurisdiction at the time it entered its decree then Kentucky is required under article 4, section 1 of the Constitution of the United States to give full faith and credit to the Indiana decree. The majority opinion cites as authority for its holding May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221. The one important single factor ignored by the majority opinion is that the children in the instant case were present in Indiana at the time the decree was entered. This was not so in May v. Anderson, sup...