Carlson v. Carlson
| Decision Date | 21 April 1983 |
| Docket Number | No. 54229,54229 |
| Citation | 8 Kan.App.2d 564,661 P.2d 833 |
| Parties | Glenda CARLSON, Appellant, v. Harold Lee CARLSON, Appellee. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. Citizens ordinarily have a constitutional right to travel from one state to another and to take up residence in the state of one's choice; however, we recognize a legitimate state interest in restricting the residence of a custodial parent.
2. A divorced person may ordinarily move about without restraint or limitation imposed by the desires or wishes of a former spouse. However, a divorced parent to whom custody of minor children has been entrusted may be required to forego or forfeit some rights to custody or visitation as the case may be, consistent with the best interests and welfare of the children and the rights of the other parent.
3. The equal protection clause of the Fourteenth Amendment to the Constitution of the United States is not violated by general rules which apply evenhandedly to all persons similarly situated.
4. Judgment in a contempt proceeding rests within the sound discretion of the trier of facts and will not be disturbed on appellate review absent a clear showing of abuse of discretion.
5. A proceeding to punish plaintiff for contempt for willfully refusing to comply with an order awarding custody of minor children to plaintiff and granting to defendant visitation rights is remedial in character and intended to coerce plaintiff to comply with such order for the benefit of the defendant and is, therefore, civil in nature and one for indirect civil contempt.
6. Punishment for indirect civil contempt is ordered where the party in contempt has refused to do an affirmative act required by the provisions of an order which, either in form or in substance, is mandatory in character. In such a case, imprisonment is not inflicted as punishment but is intended to be remedial by coercing the party in contempt to do what such party has refused to do, and the proper sentence is that the party in contempt stands committed unless and until the affirmative act required by the court's order is performed.
7. In an indirect civil contempt proceeding, a sentence of confinement in the county jail for a period of 48 hours, to be served at the rate of 12 hours per day on four specified dates, is wholly punitive and one which may properly be imposed only in a proceeding instituted and tried for criminal contempt.
8. On appeal from orders relating to child custody and visitation rights, the record is reviewed and it is held: (1) The trial court did not abuse its discretion by requiring plaintiff as custodial parent to reside in McPherson County nor in failing to impose a similar restriction upon defendant; (2) the trial court did not err in finding defendant was not in default of child support payments for the period of time custody of the minor children had been with him; (3) the trial court did not err in finding plaintiff guilty of indirect civil contempt; but (4) the trial court erred in imposing upon plaintiff a punitive sentence of imprisonment in the county jail, which sentence would have been appropriate only in a proceeding for criminal contempt.
Robert L. Taylor, Hutchinson, for appellant.
Jay K. Bremyer and J. Thomas Marten, of Bremyer & Wise, P.A., McPherson, for appellee.
Before REES, P.J., and SPENCER and PARKS, JJ.
Plaintiff and defendant, parents of four minor children, were divorced June 18, 1976. They have since been engaged in almost constant litigation relative to child custody and visitation rights.
Under date of February 9, 1981, the trial court, having then entered at least four orders relative to custody exclusive of the original decree, modified its order by placing custody of the children with plaintiff in this manner:
"That the children are placed in the care, custody, and control of the Plaintiff, Glenda Carlson, provided, and when and for so long as, she resides in McPherson County, Kansas; otherwise custody is placed with Defendant."
Under date of January 8, 1982, an evidentiary hearing was conducted and plaintiff was found to be in indirect contempt of an October 16, 1981, order by interfering with defendant's specified rights of visitation. As punishment, the court directed that plaintiff be confined in the McPherson County jail in the custody of the sheriff for a period of 48 hours, scheduled to be served at the rate of 12 hours per day on four specified dates. She was also ordered to pay defendant the sum of $200 for his attorney's fee incurred in that matter. An appeal bond was filed.
Under date of April 30, 1982, still another order was entered whereby, among other things, the court denied plaintiff's motion to again modify the custody order by removing the requirement that the children be maintained in McPherson County. In doing so, the court stated:
"[I]t was and still is in the best interests of the children, under all the circumstances of this case, to reside in McPherson County, where they will have the company of their father and the services available through the McPherson County District Court, and for the other reasons set forth earlier ...."
However, in the order of April 30, 1982, the court did modify its previous order by granting plaintiff permission to remove the children from McPherson County for summer vacations for not to exceed three weeks, conditioned on prior notice to defendant and an opportunity for defendant to make up visitation time lost during those periods. By that order, the court also found defendant was not in default of child support payments for the period of time custody of the children had been with him, this by reason of his previous order, which provided: "[C]hild support obligation shall be proportionately suspended during the time the children ... are with him," and the authority of Brady v. Brady, 225 Kan. 485, 592 P.2d 865 (1979).
Plaintiff now contends that, by reason of the residency restriction contained in the last custody order, and in order for her to have custody of the children, she has been required to move her residence from the state of Arizona to McPherson County, Kansas. She contends before this court that the restriction contained in the order violates her constitutional right to travel.
While we recognize that citizens of this nation ordinarily have the constitutional right to travel from one state to another and to take up residence in the state of one's choice, we also recognize a legitimate state interest in restricting the residence of a custodial parent. As stated by this court in Anhalt v. Fesler, 6 Kan.App.2d 921, Syl. p 1, 636 P.2d 224 (1981):
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