Boor v. Boor

• Decision Date: 13 June 1950
• Docket Number: No. 47628,47628
• Citation: 241 Iowa 973,43 N.W.2d 155
• Parties: BOOR et al. v. BOOR et al.
• Court: Iowa Supreme Court

Page 155

43 N.W.2d 155

241 Iowa 973

BOOR et al. v. BOOR et al.

No. 47628.

Supreme Court of Iowa.

June 13, 1950.

Rehearing Denied Sept. 25, 1950.

Putnam, Putnam & Putnam, Des Moines and R. B. Hawkins, Leon, for appellants.

R. E. Killmar and W. W. Reynoldson, Osceola, for appellees.

WENNERSTRUM, Justice.

Plaintiff brought an action in Decatur County for a writ of habeas corpus therein seeking the custody and possession of her two minor sons, Dwight Arnold Boor, Jr., and Anthony Rex Boor. Dwight Boor, one of the defendants, is the former husband of the plaintiff. They were divorced in Indiana on June 29, 1945. Two or three days prior to the commencement of the Indiana divorce action by the mother and plaintiff herein the father of the two boys took them to the home of his parents, Mr. & Mrs. Newton R. Boor, whose residence is in Leroy, Decatur County, Iowa. By virtue of the original divorce decree and a supplemental decree entered in the Indiana proceeding on July 30, 1948 the plaintiff claims the right to the custody of the two minor boys. In the present action now before us for review the mother seeks to enforce the provisions of the Indiana decrees. The Decatur District Court, after a trial on the merits, held that it had complete jurisdiction to determine the custody of the children on account of changed circumstances and also held that the custody of the two minor boys should remain with the father and his parents. From the decree that so provided the plaintiff has appealed.

Dwight Arnold Boor, Jr., was born August 28, 1940 and Anthony Rex Boor was born September 11, 1942. In the divorce action instituted in Lake County, Indiana, by the mother the original decree entered provided '* * * that plaintiff have custody of the minor children of said parties * * *.' It was further provided in said decree '* * * that defendant pay the sum of $60 per month for support of said minors to be paid to the clerk of this court; provided that such minors be in custody of the parents of the defendant and that such support money be paid by the clerk to such grandparents such minors to remain with said grandparents until further order of this court. * * *' It is contended that in the court's minutes of the proceedings relative to the divorce action in Lake County, Indiana, said minutes show the following: '* * * Said minors to be kept with the grandfather of said minors, Newton Boor until the further order of the court. * * *' (Italics supplied.)

The record further shows that on or about June 16, 1948, presumably as the result of a demand for the possession of the minor children by the mother, the appellant herein, the defendant in the Indiana divorce proceedings, the father, the appellee herein, filed a motion to modify the original divorce decree. In this proceedings the wife also filed a petition to modify the decree and in said proceedings filed answer to the husband's motion.

It is further shown that in connection with the proceedings to modify the decree that on July 30, 1948 a hearing was had on the respective motions and that the court found for the appellant herein (the mother) and held that the previous order relative to the keeping of the children by the grandparents should be modified and the supplemental decree provided that the mother of the minor children keep them in Whiting, Indiana, and that the payments for their support be made to her.

It is further shown that on August 9, 1948 there was entered in the Lake County, Indiana, proceedings what is designated as 'order of court correcting former entry nunc pro tunc.' This order as entered provided '* * * that defendant pay the sum of $60 per month for support of said minors to be paid to the clerk of this court; provided that such minors be kept by the parents of the defendant. * * * such minors to remain with said grandparents until further order of this court.' (Italics supplied.)

It is further therein provided 'that said entry be made as of the said 29th day of June, 1945, nunc pro tunc.' In a preliminary order relative to this nunc pro tunc entry it was stated that through inadvertence, negligence and misprision of the clerk the original order and decree did not express the judgment of the court as rendered. The nunc pro tunc order merely provided that the original decree pertaining to the custody of the minor boys by the grandparents should be changed and that the children should be kept by them.

The evidence shows that on July 31, 1948, one day after the entry of the supplemental decree in the Superior Court of Lake County, Indiana, Lenora Boor Daniels came to Decatur County, Iowa, and made a demand for the possession of the two boys. She was denied her request and thereafter on August 2, 1948 commenced this action in habeas corpus in Decatur County. It will be observed that the nunc pro tunc order in the Superior Court of Lake County, Indiana was entered subsequent to the commencement of the habeas corpus proceedings. It was the claim of the plaintiff appellant in the proceedings in the trial court in this state that by virtue of the decree dated June 29, 1945 and the supplemental order of the Superior Court of Lake County, Indiana, dated July 30, 1948 that she was entitled to the custody and possession of the two minor boys. It was the contention of the father, the appellee herein, in the trial court that the two boys were outside of the state of Indiana and domiciled in LeRoy, Decatur County, Iowa, prior to the commencement of the divorce suit. The evidence undeniably shows that the Indiana divorce action was commenced on or about March 6th or 7th, 1945 and that the father had taken the children to Decatur County, Iowa, on March 4, 1945. He was served with notice of the pendency of the divorce action on March 15, 1945. In the present habeas corpus action the father contended that the Decatur County District Court had jurisdiction to inquire into the merits and to award the custody of the boys dependent on a determination of what would be for their best interest and welfare. The trial court further found that there had been a sufficient change of circumstances to warrant the court in awarding the custody of the two boys to their father and in keeping them in the home of his parents. Consequently the proceeding for a writ of habeas corpus was ordered dismissed and the two boys were ordered returned to the care, custody and control of the defendants.

As grounds for a reversal the mother maintains (1) that inasmuch as the original parties to the divorce proceedings in Indiana were before that court and submitted to its jurisdiction that the decrees therein entered relative to the custody of the children are a verity and must be given full faith and credit by the Iowa courts; (2) that minors are incapable of changing their domicile and that one parent cannot change it for them by forcibly taking them out of a state; (3) that inasmuch as there has been no substantial change in conditions after the decree awarding custody by the Indiana court an Iowa court has no power to void the effects of a decree entered in a foreign state.

I. An Iowa court has jurisdiction to determine the ultimate disposition that should be made of minor children residing in this state at the time a decree of divorce was entered in a sister state wherein the custody of the minor children has been attempted to be determined. The Indiana court was without jurisdiction to determine the status of the children not within that state.

In the case of Ex parte Erving, 109 N.J.Eq. 294, 157 A. 161, 164, it was held that the orders of a New York court, in a divorce action and in a subsequent habeas corpus proceeding pertaining to a child not actually before the New York court or within its jurisdiction, were not entitled to receive full faith and credit by the New Jersey court. It was therein stated: '* * * Whether the orders of the New York court are res adjudicata as between the father and the mother is beside the issue, which is whether those orders can bind this court as against the infant boy, in determining where his custody should go; he being a resident of this state and subject to its jurisdiction. Each state has the power to determine the status of persons within its jurisdiction, and it seems to me that the New York court had no power to make any order with respect to the boy within the jurisdiction of this court, which would be binding upon him. * * *'

In 43 C.J.S., Infants, § 5, par. 5. p. 52, quoted in Pelton v. Halverson, Iowa, 35 N.W.2d 759, 762, it is stated: 'Jurisdiction to control, and determine and regulate the custody of, and infant is in the courts of the state where the infant legally resides, * * *.'

In the early Iowa case of Kline v. Kline, 57 Iowa 386, 388, 389, 10 N.W. 825, 826, 42 Am.Rep. 47, in passing upon the claimed jurisdiction of a Wisconsin court to determine the custody of minor children, not in that state at the time of the entry of a divorce decree, this court stated:

'We think it logically follows that where the minor children are non-residents of the state where the divorce proceedings are had, that the court acquires no jurisdiction as to their custody simply because the decree can have no extraterritorial force or effect. * * *

'In our opinion the decree, so far as it attempted to fix the custody of the children, was without jurisdiction in the first instance. Want of jurisdiction is a matter which may always be interposed against an adjudication, when sought to be enforced, or when any benefit is claimed for it. The want of jurisdiction either of the subject-matter or of the person of either party renders a judgment a mere nullity. * * *'

Also holding to the same effect are: Mollring v. Mollring, 184 Iowa 464, 468, 167 N.W. 524; Rodgers v. Rodgers, 56 Kan. 483, 43 P. 779; Elliott v. Elliott, 181 Ga. 545, 182 S.E. 845, 846; Avera v. Trapnell, 193 Ga. 60, 17 S.E.2d 168; Ex Parte Alderman, 157 N.C. 507, 73 S.E. 126, 129, 39...