Clemens v. Kinsley

• Decision Date: 26 December 1951
• Docket Number: No. 7724,7724
• Parties: CLEMENS v. KINSLEY.
• Court: Idaho Supreme Court

Page 266

239 P.2d 266

72 Idaho 251

CLEMENS v. KINSLEY.

No. 7724.

Supreme Court of Idaho.

Dec. 26, 1951.

Karl Jeppesen, Boise, for appellant.

Kibler & Beebe, Nampa, for respondent.

TAYLOR, Justice.

The parties were married in 1929 at Guffy, Oklahoma. Thereafter and for about fifteen years prior to 1947 they made their home in the state of Oregon. Four children were born of this union; three boys and one girl, the girl being the youngest. In 1947 the plaintiff separated from the defendant and moved from Oregon to Nampa, Canyon County, Idaho, bringing with him the three boys. The defendant continued to reside in Oregon where the daughter lived with her.

In November, 1948, the plaintiff filed suit for divorce in Canyon County. In his complaint he alleged that the three sons were in his custody and control and that the minor daughter, Francis Mae Clemens, then age 4, was outside of the jurisdiction of the court and in the care, custody and control of the defendant. Summons in the divorce action was personally served on the defendant at Woodburn, in the state of Oregon. Upon receipt of the summons, defendant sought counsel in Salem, Oregon, and her counsel and plaintiff's counsel conducted negotiations regarding the custody of the children, as a result of which it was agreed that the defendant would have the care, custody and control of the minor daughter. Default of the defendant for failure to appear was subsequently entered and decree of divorce followed, December 27, 1948. The plaintiff was awarded custody of the three boys residing with him in Canyon County, Idaho; but the daughter, then living with the defendant in Oregon, was not mentioned.

Both parties have since remarried.

In January, 1949, at plaintiff's request, the defendant accepted the temporary custody of two of the boys, who thereafter resided with her at her home in Oregon until June, 1950. When they were returned to their father's home in Idaho, Francis Mae came with them for a visit, it being agreed that she would be returned to her mother after a few weeks. In the forepart of July the defendant and her husband came to Idaho on a vacation trip and on their way back to Oregon called at the home of the plaintiff on July 18, for the purpose of taking the daughter back with them. The plaintiff informed them he had changed his mind and refused to deliver the child. After some negotiation they were advised by a brother of the plaintiff that if they would wait at a certain address until 2:30 in the afternoon of the 21st of July, the child would be delivered to them. They accordingly awaited at the indicated address until after the appointed hour, when the defendant was served with summons, complaint and order to show cause in this action. The complaint prays for judgment giving the plaintiff custody of the child. In addition to the usual provision for a hearing on the question of custody pendente lite, the order to show cause also restrained the defendant from taking or removing the child from the jurisdiction of the court, or interfering with the plaintiff's temporary custody of her.

Defendant then procured counsel and filed a motion to quash the order to show cause, supported by her affidavit reciting the facts substantially as above outlined, and also setting forth the complaint in the divorce action. The principal ground urged by the motion is that the court was without jurisdiction, it being urged that the plaintiff had mistaken his remedy; that he should have proceeded by motion for a modification of the decree in the divorce action in Canyon County, instead of bringing this independent action for custody in Ada County; that this, not being a divorce action, nor a proceeding by habeas corpus, nor an action to determine the custody of children following separation of the parents within the purview of § 32-1005, I.C., is unknown to Idaho law and the court is without jurisdiction in the premises. Subsequently, defendant moved the court to dismiss the action on the same grounds. By its order dated October 3, 1950, the court granted both motions, quashed the order to show cause and dismissed the action, on the ground of want of jurisdiction.

Upon being advised of this order, the defendant returned to Idaho and with her attorney went to the school in Nampa, where Francis Mae was in attendance, and representing to the teacher and superintendent that the order restraining defendant from exercising custody of the child had been rescinded, took the child and returned her to Oregon.

On November 15th, following, this appeal was taken by the plaintiff. The defendant has filed a motion in this court for a dismissal of the appeal on the ground that the cause has become moot, and sets up in support thereof the facts concerning the return of the mother and child to their domicil in Oregon and that they now are beyond the jurisdiction of the courts of Idaho.

It is generally held that a court, once having obtained jurisdiction of the parties and the subject-matter, does not lose that jurisdiction by subsequent acts of the parties. The issue has not become moot by the removal of the defendant and child back to Oregon. Cole v. Cole, 68 Idaho 561, 201 P.2d 98; Sampsell v. Superior Ct., 32 Cal.2d 763, 197 P.2d 739; Peacock v. Bradshaw, 145 Tex. 68, 194 S.W.2d 551; Annotation 4 A.L.R.2d 31; Annotation 9 A.L.R.2d 446. The first question presented is that of the jurisdiction of the trial court. As noted, defendant contends that the jurisdiction to determine the custody of the child, Francis Mae, still reposes in the district court in Canyon County. So far as the original proceedings in that court are concerned, it never acquired jurisdiction to determine the custody of this child, the service being by substitution, and the defendant and the child being out of the state. Duryea v. Duryea, 46 Idaho 512, 269 P. 987; Cole v. Cole, supra; State ex rel. Ranken v. Superior Ct., 6 Wash.2d 90, 106 P.2d 1082; Byers v. Superior Ct., 61 Ariz. 284, 148 P.2d 999; Lake v. Lake, 63 Wyo. 375, 182 P.2d 824; Callahan v. Callahan, 296 Ky. 444, 177 S.W.2d 565; Oxley v. Oxley, 81 U.S.App.D.C. 346, 159 F.2d 10; Annotation 4 A.L.R.2d 7; Annotation 9 A.L.R.2d 434; 27 C.J.S., Divorce, § 303b; 17 Am.Jur., Divorce & Separation, § 688.

Whether, subsequently to its decree, the mother and child being found within the state, the divorce action could have been revived to determine the custody of the child by supplemental proceedings, we do not decide.

So far as venue is concerned, the action was properly filed in Ada County, the defendant being a nonresident of the state. § 5-404, I.C. Concededly, plaintiff could not obtain a writ of habeas corpus, he having possession of the child. § 19-4201, I.C.; Evans v. Dist. Ct., 47 Idaho 267, 275 P. 99; 39 C.J.S., Habeas Corpus, § 9; State v. Olsen, 53 Idaho 546, 26 P.2d 127. Nor is this a case of separation without divorce under § 32-1005, I.C.

However, we are not confined to statutory provisions for a delineation of the jurisdiction of the district court. 'The jurisdiction of the courts of this state in divorce actions is conferred by the constitution. Art. 5, section 20, as follows: 'The district court shall have original jurisdiction in all cases, both at law and in equity, and such appellate jurisdiction as may be conferred by law.' The broad jurisdiction thus created is not subject to diminution by legislative act. Constitution, Art. 5, section 13; Fox v. Flynn, 27 Idaho 580, 150 P. 44.' Robinson v. Robinson, 70 Idaho 122, 212 P.2d 1031, 1033. And apparently the legislature has not attempted any such limitation. § 1-705, I.C. Hence, legislation providing for habeas corpus, the determination of custody and support in divorce actions, and for custody in cases of separation without divorce, cannot be construed as in any way limiting the jurisdiction conferred by the constitution on the district court. Nor can those statutes be given the effect of denying the right of recourse to that court for relief in cases not provided for by such legislation. No logical reason has been suggested, or appears, why the district court in a proper case should not determine the custody of an infant in an independent action brought for that purpose. If the venue chosen is not proper for the trial, a change is provided for. §§ 5-406 and 5-407, I.C.

We conclude that the district court of the third district for Ada County had jurisdiction to hear and determine the cause of action alleged in the complaint. Stewart v. Stewart, 32 Idaho 180, 180 P. 165; Simontion v. Simonton, 33 Idaho 255, 193 P. 386; Vollmer v. Vollmer, 47 Idaho 135, 273 P. 1; Stephens v. Stephens, 53 Idaho 427, 24 P.2d 52; Sauvageau v. Sauvageau, 59 Idaho 190, 81 P.2d 731; Radermacher v. Radermacher, 61 Idaho 261, 100 P.2d 955; Stone v. Bradshaw, 64 Idaho 152, 128 P.2d 844; Cole v. Cole, 68 Idaho 561, 201 P.2d 98; Addy v. Stewart, 69 Idaho 357, 207 P.2d 498; Hunter v. Clawson, 70 Idaho 324, 216 P.2d 949; Foy v. Foy, 23 Cal.App.2d 543, 73 P.2d 618; Urbach v. Urbach, 52 Wyo. 207, 73 P.2d 953, 113 A.L.R. 889; Haynes v. Fillner, 106 Mont. 59, 75 P.2d 802; State ex rel. Ranken v. Superior Ct., 6 Wash.2d 90, 106 P.2d 1082; Byers v. Superior Ct., 61 Ariz. 284, 148 P.2d 999; Green v. Green, Tex.Civ.App., 146 S.W. 567; Workman v. Workman, 191 Ky. 124, 229 S.W. 379; Carroll v. Carroll, 158 S.C. 162, 155 S.E. 271; Chase v. Bartlett, 176 Ga. 40, 166 S.E. 832; Finlay v. Finlay, 240 N.Y. 429, 148 N.E. 624, 40 A.L.R. 937; Sheehy v. Sheehy, 88 N.H. 223, 186 A. 1; 107 A.L.R. 635, annotation 642; Dovi v. Dovi, 245 Wis., 50, 13 N.W.2d 585, 151 A.L.R. 1368; Annotation 4 A.L.R.2d 7; Annotation 9 A.L.R.2d 434; Briggs v. Briggs, 111 Utah 418, 181 P.2d 223.

Some courts have denied jurisdiction where, as here, the child was only temporarily within the state, his domicil being elsewhere. 43 C.J.S., Infants, § 5, p. 53, note 53. However, we consider the better view is that taken by other courts to the effect that if...