Burnworth v. Hughes, 54028

• Decision Date: 21 October 1983
• Docket Number: No. 54028,54028
• Citation: 670 P.2d 917,234 Kan. 69
• Parties: Donald Otis BURNWORTH, Appellant, v. Bernice Lucille HUGHES, Appellee.
• Court: Kansas Supreme Court

Page 917

670 P.2d 917

234 Kan. 69

Donald Otis BURNWORTH, Appellant, v. Bernice Lucille HUGHES, Appellee.

No. 54028.

Supreme Court of Kansas.

Oct. 21, 1983.

Syllabus by the Court

1. The paramount concern of courts in every child custody proceeding is the welfare and best interests of the child.

2. In determining the right to the custody of a child, the court is dealing with a matter equitable in character.

3. In a proceeding which is equitable in character, the court has the power and authority to make a full and final adjudication upon all of the rights of the parties connected with the subject matter of the action, so as to avoid a multiplicity of suits.

4. In a proceeding relating to child custody or visitation, a court may order child support payments and condition visitation rights upon the noncustodial parent's payment of reasonable child support.

5. Absent an appropriate pleading setting up a claim or counterclaim for the enforcement of the judgment of a foreign state for child support, the enforcement of the foreign judgment is beyond the jurisdiction of a Kansas district court.

H. Reed Walker, of Barnett & Lerner, Chartered, Kansas City, argued cause and was on briefs, for appellant.

LaVone A. Daily, of Scott & Daily, Chartered, Kansas City, argued cause and was on brief, for appellee.

PRAGER, Justice:

This is an action brought by a father against his divorced wife seeking custody of their three minor daughters or, in the alternative, for visitation rights. The trial court ordered the plaintiff to pay support at the rate of $600 per month and continued the custody hearing pending plaintiff's compliance with the child support order. Plaintiff did not comply with the child support order and the defendant wife proceeded to run a series of garnishments, obtaining a continuing order of garnishment against the plaintiff's employer, United Airlines. Plaintiff appealed challenging the validity of the child support order and of the garnishment orders to enforce the same. The Court of Appeals 662 P.2d 577 reversed in an unpublished opinion filed April 7, 1983. This court granted defendant wife's petition for review.

This case is the result of a bitter marital dispute between the plaintiff and the defendant. The parties are the natural parents of three teen-age daughters. Plaintiff and defendant were divorced in the state of California in January of 1971. Defendant was awarded custody of the three children. Conflict arose in regard to plaintiff's visitation rights and payment of child support. The factual circumstances in the case are not clear because the trial court did not make findings of fact, and because the factual issues have not been determined in a full evidentiary hearing. This present litigation started when plaintiff filed a petition in Wyandotte County on March 30, 1979, in which he alleged that plaintiff is a resident of the state of Colorado and that defendant and the minor children are all residents of Wyandotte County.

In his petition, plaintiff also alleged that the state of Kansas is the home state of the children and has been their home for six months prior to the commencement of the proceeding. He alleged that it is in the best interests of the children for a court of the state of Kansas to assume jurisdiction over this matter, since one of the children's parents has a significant connection with this state and "there is available in this state substantial evidence concerning the children's present or future care, protection, training and personal relationships." Plaintiff further alleged that for these reasons the district court has jurisdiction over the matters set forth in the petition. Among other things, the plaintiff alleged that by order of a district court of Colorado he is required to pay the sum of $375 per month commencing February 25, 1979, as child support, and that he is current in his payments. He alleged that, although he is paying child support, he is being denied visitation with and custody of his minor children. Plaintiff prays that he be granted custody of the minor children or, in the alternative, that he be granted reasonable visitation rights, and for such other and further relief as to the court may seem just and equitable in the premises.

Defendant Hughes filed an answer admitting that Kansas was the home state of the children and denying that plaintiff was entitled to a change of custody or visitation rights. She alleged that, following the 1971 California divorce, plaintiff kidnapped the children four times and, as a result, the California court terminated plaintiff's right to visitation. She specifically denied that plaintiff had paid any child support ordered by the California court and alleged that the Colorado action had been dismissed. She alleged specifically that from September 2, 1972, to April 1, 1979, plaintiff had made no payments for child support in violation of the California court order, and that he was in arrears for child support in an amount in excess of $50,000. In her answer, the defendant prayed that plaintiff take naught by his petition for custody and that defendant be granted expenses, costs, attorney's fees, and "such other and further relief as the court may deem just and equitable." It is important to note that defendant never filed a counterclaim specifically praying for an order for child support. Thereafter, the parties filed various motions and several hearings were held. At most of the hearings, neither of the parties appeared in person.

On June 8, 1979, the district court held a hearing on motions for custody and attorney fees. It ruled that it had jurisdiction to consider the custody and visitation rights raised in plaintiff's petition and also had jurisdiction to enter a child support order since the plaintiff had consented to the jurisdiction of the court. The trial court entered an order requiring plaintiff to pay $600 per month as child support, and, further ordered that, if plaintiff complied with the order of child support, it would then set the matter of visitation for an evidentiary hearing. Thereafter, plaintiff filed a motion to reconsider the motion for support which was denied.

The trial court then ordered the court services department to investigate the possibility of visitation by the plaintiff. The parties were ordered to attend a visitation workshop. In June of 1980, an order of supervisory visitation was entered to allow the plaintiff the second Saturday of each month to visit with the children from 9:00 a.m. to 4:00 p.m. At this time the court also entered a judgment for past due child support in the amount of the arrears on the Kansas order which was not specifically set forth in the order.

Thereafter, plaintiff failed to pay child support. In due course, defendant obtained a garnishment order attaching plaintiff's earnings from his employment with United Airlines, Inc. Plaintiff filed a motion to restrain the garnishment for lack of jurisdiction, sought a contempt citation for defendant's executing on the support order without court permission, and requested a hearing on support, visitation, and custody. The district court denied plaintiff's motion to restrain the garnishment and for a contempt citation, but sustained plaintiff's request for a hearing on support and custody. The plaintiff then filed a notice of appeal to the appellate courts on various orders entered in the case.

On January 22, 1982, the district court granted defendant's motion for a continuing order of garnishment, finding that plaintiff was more than one year in arrears on child support. The court ordered United Airlines, Inc., to pay the sum of 55% of plaintiff's disposable earnings of approximately $2,803 into court on the first and fifteenth of each month until the further order of the court. Thereafter, on November 5, 1982, plaintiff filed a motion to vacate or modify the continuing order of garnishment alleging that he had overpaid the child support due under the Kansas child support order and that future payments should be limited to only $300 semimonthly. In her response to this motion, defendant alleged that child support payments were past due on the California judgment and that the garnishment order of $1,541.69 on the first and fifteenth of each month should be continued. The trial court denied plaintiff's motion to vacate or modify the continuing garnishment order. Plaintiff then filed an additional notice of appeal on December 3, 1982.

The case was argued and submitted to the Court of Appeals which reversed the trial court in an unpublished opinion filed April 7, 1983. The Court of Appeals held, in substance, that the district court had no jurisdiction over the issue of child support, because neither of the parties had sought by their pleadings to invoke jurisdiction of the court to enforce the duty of plaintiff to support his minor children. The opinion recognized that, although defendant in her answer alleged that plaintiff had failed to meet his obligation of support, no actual claim for relief in that regard was asserted by the defendant.

The Court of Appeals, in arriving at its decision, relied on Keller v. Guernsey, 227 Kan. 480, 488, 608 P.2d 896 (1980), which states in the opinion as follows:

"A parent's duty of support may be enforced in civil proceedings in one or more of at least three ways. Depending upon the circumstances of the individual case, the proper remedy may be: (1) proceedings under 60-1610(a); (2) proceedings under 23-451 et seq.; or (3) an action to enforce the common law duty of support."

Simply stated, the Court of Appeals reasoned that the defendant wife had failed to initiate proceedings to collect child support by using any of the three remedies suggested in Keller, so that the jurisdiction of the district court in the area of child support had not been properly invoked. It concluded that because defendant failed to assert a specific claim for child support, the...