Burns, Application of

• Decision Date: 03 November 1965
• Docket Number: No. 4484,4484
• Parties: Application of James R. BURNS, for a writ of habeas corpus.
• Court: Hawaii Supreme Court

Page 885

407 P.2d 885

49 Haw. 20

Application of James R. BURNS, for a writ of habeas corpus.

No. 4484.

Supreme Court of Hawai'i.

Nov. 3, 1965.

Syllabus by the Court

1. Authorized vacation of a decree reinstates the original pleadings without loss of the original jurisdiction of the court and permits resumption of the ligation under the original pleadings upon the giving of timely notice to the adverse party with adequate opportunity to be heard.

2. When a child changes its domicile from one state to another and becomes a citizen of the second state, he is no longer subject to the supervision and authority of the courts of the first state.

3. Custody decrees, unlike other judgments, are subject to modification at any time in accordance with the changing requirements of the child's welfare. The primary principle in determining the extraterritorial recognition to be given such decrees should be the forum court's discretion exclusively governed by consideration of the child's welfare at the time the inquiry is being made. While the former foreign adjudication is evidentiary it is not controlling, and neither full faith nor comity should be required to be given it at the expense of this discretion.

4. In a habeas corpus proceeding involving the custody of children within its territorial confines, the forum court can look into the merits of the question of custody and issue an award according to the best interests of the children.

E. D. Crumpacker, Honolulu (Maomi S. Campbell, Honolulu, on the briefs, Crumpacker & Sterry, Honolulu, of counsel), for petitioner-appellant.

Louis A. Rodrigues, Kailua, for respondent-appellee.

Before TSUKIYAMA, C. J., and CASSIDY, WIRTZ, LEWIS and MIZUHA, JJ.

WIRTZ, Justice.

This appeal has resulted from the dismissal of the Petition for a Writ of Habeas Corpus brought by petitioner-appellant to enforce an Oregon divorce decree awarding custody of the two minor children of his marriage with respondent-appellee to him.

On January 2, 1963, respondent-appellee brought a complaint for divorce in the Circuit Court of the State of Oregon in the County of Jackson in which she prayed for the custody of the two female minor children of the marriage, then three and four years of age respectively. Petitioner filed an answer in said action denying the material allegations of the complaint, together with a cross-complaint for divorce also praying for the custody of the children. In response to the cross-complaint, respondent filed a general denial.

After a trial the Oregon Circuit Court on June 6, 1963, entered its opinion, findings and conclusions ¹ granting the divorce to respondent and awarding her the custody of the children. Thereafter, and in accordance therewith, the Circuit Court of Oregon on July 2, 1963, entered a decree of divorce.

On August 2, 1963, after service on respondent's attorney, petitioner filed a motion for order to show cause, supported by affidavit, why the divorce decree should not be modified to award custody of the minor children to petitioner, upon which the Circuit Court of Oregon entered an order to show cause returnable on August 19, 1963. In the meantime, on July 4, 1963, just two days after the entry of the Oregon divorce decree, respondent left Oregon for California taking with her the children. On July 9, 1963, she remarried. On August 1, 1963, the day before petitioner filed his motion to modify the custody provisions of the Oregon divorce decree, respondent and her new husband, together with the minor children, left California for Hawaii with the intent to make Hawaii their future home. ²

On August 12, 1963, respondent's attorney secured the approval of a different judge of the same Circuit Court of Oregon to withdraw as attorney of record in the Oregon divorce case. However, when it later came to the attention of the original judge that respondent's attorney had been served with the motion for order to show cause prior to the filing of his motion to withdraw, the order approving the withdrawal apparently was informally set aside and respondent's counsel was notified to appear at the continued hearing on the order to show cause and in fact did appear at that hearing on October 7, 1963 and participated in the proceedings by cross-examining the witnesses produced by petitioner. On October 14, 1963, the Circuit Court of Oregon entered an order setting aside the divorce decree granted respondent on July 28 1963, on the ground of fraud on the part of respondent and awarded the temporary custody of the minor children to the petitioner with leave to file an amended answer and cross-complaint to the original complaint of divorce brought by respondent.

Thereupon, on November 15, 1963, petitioner filed his Petition for a Writ of Habeas Corpus in the Circuit Court of the First Circuit, to which respondent filed her return on December 6, 1963. The matter was set down for hearing and was heard on December 13, 1963, at which time the testimony of respondent was taken. On December 17, 1963, petitioner filed a motion to strike as impertinent and immaterial the allegations in the return to the effect 'that Petitioner is not a fit or proper person to have the care, custody or control of said minor children; and that it would not be for the best interests of said children to be by the Court placed in the custody of Petitioner;' and for summary judgment. On the same date, December 17, 1963, petitioner filed his amended answer and cross-complaint in the divorce proceedings in Oregon pursuant to the leave of court granted him on October 14, 1963. On April 30, 1964, the trial judge entered his decision denying the motion to strike and summary judgment. Thereafter, in Oregon on May 5, 1964, the Oregon court entered its decree on the amended answer and cross-complaint awarding the divorce as prayed for in the cross-complaint to petitioner, together with custody of the minor children. By stipulation entered on August 20, 1964, this final decree of the Oregon court was filed and the matter was submitted for final decision.

Due to the fact that this stipulation was not brought to the attention of the trial judge, no further action was taken until by letter on October 8, 1964, counsel for petitioner reminded the court that 'this case is now submitted on the general issue (as opposed to the Motion for Summary Judgment) and we are awaiting a Decision and Judgment.' The decision of the trial judge was entered on November 5, 1964, followed by an order pursuant thereto on December 4, 1964, dismissing the petition and awarding the custody of the minor children to respondent until further order of that court, from which this appeal was taken.

While petitioner states that the sole question involved under this appeal is 'whether the Court below erred in failing to give full faith and credit to the findings, orders and decrees of the Oregon Court,' actually the question would be more properly stated by limiting it to the custody provisions as the marital status and the property rights determined by the Oregon divorce decree were not before the trial judge in the proceedings below. Since jurisdiction of the Oregon court is essential to the recognition of its decrees under the full faith and credit clause of the Constitution of the United States, we turn to a consideration of the first of the three specifications of error ³ relied on by petitioner under this appeal.

It is fundamental that a forum state is not required to render full faith and credit under the United States Constitution to sister state judgments which were rendered without jurisdiction over either the person or subject matter or in proceedings in rem over the res. Thompson v. Whitman, 18 Wall. 457, 461, 85 U.S. 457, 461, 21 L.Ed. 897.

Here the Oregon court initially issued a decree awarding an absolute divorce with custody of the children in favor of the respondent with reasonable rights of visitation to the petitioner. In its opinions and findings the Oregon court stressed that the Oregon decree was subject to modification upon significant change in circumstances which affect the welfare of the children. At the hearing initiated by the petitioner's motion for modification the Oregon court vacated the entire decree which had been rendered on July 1, 1963, that is both as to the marital status and the custody aspects and reinstated the original complaint for resumption of litigation from that point on as to the amended answer and cross-complaint of the petitioner. No question has been raised as to this action of the Oregon court although it is not clear from the record whether the court acted on its own motion or on an oral motion of petitioner's attorney. Thereafter, the court, pending further hearings on the amended answer and cross-complaint entered a temporary order awarding custody of the children to petitioner. ⁴ Thereafter at the conclusion of the hearing on the amended answer and cross-complaint the court entered another decree awarding an absolute divorce and custody in favor of the petitioner. This decree (entered almost ten months after the children had become domiciled in Hawaii), like the temporary custody order, makes no reference to any evidence considered or findings made concerning the welfare and best interests of the children. Although the petition for writ of habeas corpus instituted in Hawaii was commenced after the award of temporary custody to petitioner, a final order dismissing the writ was not entered until after the final decree covering both the divorce and custody aspects had been entered and received in evidence by stipulation. There would appear to be no significance ⁵ attributable to whether the trial court's order of dismissal of the writ contemplated only the temporary award of custody. Cf., Hollinrake v. Hollinrake, 40 Haw. 397, 402-404. Further, since the final permanent custody order was properly introduced into evidence with the express consent of the parties, it...