Bishop v. Bishop
| Decision Date | 28 January 1958 |
| Docket Number | No. 37641,37641 |
| Parties | Bertha B. BISHOP, Plaintiff in Error, v. Pat BISHOP, Defendant in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
1. In determining, as between divorced parents, the question of who shall have the custody of their minor children, the welfare of the children is the paramount consideration.
2. Where the wife has brought a suit for divorce, alimony, and for custody of the minor children and for funds for the education and support of the children, and judgment is awarded in her favor in all particulars, she cannot by removing to another state and taking the children with her defeat the continuing jurisdiction of the court to modify its decree in so far as it applies to the custody of the children.
3. Where a change of condition has been shown the trial court has the jurisdiction to make an order as to custody of a child then with a parent in another State.
4. Excluding a defendant from participation in any feature of a divorce case for failure to pay suit money, alimony or child support as ordered, is a denial of due process clause of the United States Constitution, Amend. 14. Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215.
Appeal from District Court of Lincoln County; Donald E. Powers, Judge.
Appeal by Bertha B. Bishop on the original record from an order of the District Court of Lincoln County, entered September 22, 1956, granting to her former husband, Pat Bishop, the custody of their two minor children, Suzanne and Gary Bishop, whose custody had been granted to Bertha B. Bishop in the divorce decree entered on July 10, 1954. Affirmed.
P. D. Erwin, Chandler, for plaintiff in error.
Joe Young, Chandler, for defendant in error.
In January, 1954, Bertha B. Bishop filed a divorce action in the District Court of Lincoln County against Pat Bishop, praying for a divorce, custody of their two minor children and child support. We shall refer to the parties as plaintiff and defendant as they appeared in the trial court.
July 10, 1954, the divorce was granted to the plaintiff, awarding to her the exclusive custody of their two children, ordering the defendant to pay her $100 temporary support, attorney's fee and costs, and ordering the defendant to pay $50 per month for the care and support of the two children during their minority, beginning September 11, 1954.
Mrs. Bishop took her two children to California and established her domicile there. On August 9, 1956, she filed an application to have her former husband cited for contempt, alleging that under the divorce decree of 1954, he had paid only $550 for child support, despite his ability to pay.
She further alleged that in August, 1955, the father had obtained temporary custody of Suzanne Bishop, age seven, after she, the plaintiff, had agreed to allow their daughter to spend the summer with her father upon the father's promise to return the child to her for the next school term in California. The defendant had failed to keep this promise, but secured an order giving him temporary custody of Suzanne without the knowledge or consent of the plaintiff. She prayed that he be cited for contempt for failure to pay the child support provided in the original divorce decree and requiring defendant to return the custody of their daughter to her.
On the day plaintiff filed the above motion, the defendant filed a motion to modify the original divorce decree as to custody of the two children, and on November 5, 1955, obtained an order giving him temporary custody of Suzanne.
Upon learning of this order the plaintiff amended her application to have defendant cited for contempt in failing to pay support money. She alleged that she had no notice of defendant's motion to modify the divorce decree and give him custody of Suzanne, and prayed that such order be vacated, and that she be awarded immediate custody of Suzanne or that her custody be awarded to the mother of plaintiff, Mrs. Sue Danker. Defendant prayed for the custody of both children.
On September 22, 1956, the court granted the custody of both children to Pat Bishop, who was also ordered to pay attorney's fee and cost of deposition.
This is an appeal on the original record. Both parties quote extensively from the testimony given and since neither party denies the correctness of the quoted testimony, we assume that it is correct. The plaintiff testified by deposition.
The plaintiff first contends that the trial court had no jurisdiction to make any order changing the custody of minor children permanently domiciled in another state. The minor son, Gary, age two, was residing in the State of California with his mother on September 22, 1956, when the District Court of Lincoln County entered an order giving the defendant, Pat Bishop, custody of both Suzanne and Gary, and ordering plaintiff to surrender the custody of Gary to his father.
Did the District Court of Lincoln County, Oklahoma, have authority to modify the divorce decree as to custody after the plaintiff had lawfully taken the children to California, and one was returned to Oklahoma on the fraudulent intent of the defendant to obtain custody and the other was permanently residing with the plaintiff in California? A correct answer to this question is the principal issue before us.
We have examined the cases cited by the plaintiff in support of her contention that the Oklahoma Court had no jurisdiction to make the order appealed from. Several of these cases are from other states. We find that the facts in some of the cases cited are materially different from those in the case before us. Then, Forkner v. Forkner, 96 Cal.App.2d 363, 215 P.2d 482, is erroneously cited as an Oklahoma case, when it is a decision by the District Court of Appeals, Fourth District of California. It clearly supports plaintiff's contention, but is not binding upon this Court.
The early case of Tinker v. Tinker, 144 Okl. 97, 290 P. 185, is mentioned with the suggestion that this Court probably does not approve that decision. The facts in the Tinker case are very similar to the facts before us. Mrs. Tinker obtained a divorce, custody of their one child, alimony and a sum for child support. The trial court approved a written stipulation of the parties which modified the original decree by which the custody of the child remained with the mother, with defendant's right of visitation at her home once every two months. Defendant moved that the supplemental decree be vacated and alleged that the mother had taken the child to Kansas City and delivered it to her parents, who had its custody. The court ordered the mother to have the child within its jurisdiction at the hearing, and she moved that the court vacate its order setting for hearing defendant's motion on the ground that she and the child were residents of the State of Missouri and the District Court of Tulsa County was without jurisdiction. The trial court sustained her motion and defendant appealed to this Court which reversed the trial court and held that the mother could not defeat the continuing jurisdiction of the Oklahoma court to modify its decree as to custody of the child by removing the child to another state.
Plaintiff states that the Tinker decision has not been cited in later decisions. We find it cited in Freeman v. Freeman, 190 Okl. 74, 120 P.2d 627; Childers v. Childers, 202 Okl. 409, 214 P.2d 722, and other cases.
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