Cox v. Cox

• Court: U.S. Court of Appeals — Third Circuit
• Writing for the Court: GIBBONS, Circuit Judge
• Citation: Cox v. Cox, 8 V.I. 543 (3rd Cir. 1972)
• Decision Date: 30 March 1972
• Docket Number: No. 71-2090,71-2090
• Parties: ANTHONY D. COX, Appellant v. YOKO ONO COX

8 V.I. 543

ANTHONY D. COX, Appellant v. YOKO ONO COX

No. 71-2090

United States Court of Appeals Third Circuit

Argued January 24, 1972

Decided March 30, 1972

Motion, two and a half years after grant of final divorce, by former wife for custody of child of the marriage. District Court granted motion and former husband appealed. Circuit Court, Gibbons, Circuit Judge, held that where original divorce decree of Virgin Islands District Court made no provision for custody of the child of the parties, court could, on petition by former wife to amend decree to give her custody, and under statute providing for modification "of so much of the judgment as may provide [inter alia]. . . for the care and custody of the minor children", under the guise of an amendment, make an original custody order.

Affirmed.

[COPYRIGHT MATERIAL OMITTED]

WILLIAM W. BAILEY, ESQ. (BAILEY, WOOD & ROSENBERG), Charlotte Amalie, St. Thomas, V.I., for appellant

ROGER L. CAMPBELL, ESQ. (LOUD, CAMPBELL & DENNENBERG), St. Thomas, V.I., for appellee

Before SEITZ, Chief Judge, ALDISERT and GIBBONS, Circuit Judges

OPINION OF THE COURT

GIBBONS, Circuit Judge

This is an appeal from an order awarding to Yoko Ono Cox Lennon legal custody of her daughter, Kyoko, subject to the right of reasonable visitation with Anthony D. Cox, the child's father.

On January 15, 1969 Anthony D. Cox commenced in the District Court of the Virgin Islands an action for a decree of absolute divorce in which he prayed for custody of Kyoko, with reasonable rights of visitation for the mother. The parties had been married in Tokyo, Japan in 1963, and Kyoko, the one child of the marriage, was then five years of age. Mr. Cox alleged that he was a resident of the Virgin Islands for more than six weeks prior to the commencement of the action and that Yoko Ono Cox was then a resident of London, England. The court ordered service of process in the divorce action by publication. Yoko Ono Cox filed a verified answer in which she admitted that a state of incompatibility of temperament existed between the parties, and in which she stated:

"2. Offers no objections to the immediate hearing of the application of the plaintiff for a decree of divorce absolute, without further notice to defendant; and to the making and entry of such findings of fact, conclusions of law, and decree as to the Court may seem just and proper in the premises, except that the defendant refuses to give exclusive custody of the child to the plaintiff." (emphasis supplied)

The italicized language in the answer was added by Yoko Ono Cox in her own handwriting. She also filed a voluntary notice of appearance, waiver and consent in which she consented to the hearing of the cause as if by default. See 5 V.I.C. § 115. The answer and the voluntary appearance were verified on January 15, 1969, the same date on which the complaint was filed. Mr. Cox moved that the case be scheduled as an uncontested divorce hearing on January 27, 1969. He testified at this hearing, and the court made the following findings of fact, conclusions of law and decree:

"FINDINGS OF FACT:

That the plaintiff is an inhabitant of the Virgin Islands who was domiciled therein at the commencement of this action, and who has resided therein at least six (6) weeks prior thereto; that theparties were married on June 11, 1963 in Tokyo, Japan, and there is one child of this marriage, namely: Kyoko, 5 years old; and that a state of incompatibility of temperament exists between the parties.

CONCLUSIONS OF LAW:

That I conclude as a matter of law, that a state of incompatibility of temperament exists between the parties, which entitles the plaintiff to a Decree of Divorce Absolute.

* * *

ORDERED, ADJUDGED AND DECREED:

1. That the Plaintiff be and he hereby is granted a Decree of Divorce Absolute, dissolving forever the bond of matrimony heretofore existing between the parties and entered into on the 11th day of June, 1963;

2. That the questions of the care, custody, and control of the minor child, Kyoko, shall be left open for the future determination of a court of competent jurisdiction."

The District Court of the Virgin Islands had subject matter jurisdiction, in the divorce action, to "further decree—(1) for the future care and custody of minor children of the marriage as it may deem just and proper. . . ." 16 V.I.C. § 109. It is clear, however, that the district court in 1969 expressly refrained from making any decree respecting Kyoko's custody. Undoubtedly this was done because in the verified answer Yoko Ono Cox contested the custody issue and the court concluded that, although it had jurisdiction, it would not dispose of that issue in a default proceeding. A fair construction of the decree, therefore, is that it granted an uncontested divorce but dismissed without prejudice Mr. Cox's prayer for a custody decree.

On June 9, 1971 Yoko Ono Cox Lennon (formerly Yoko Ono Cox) filed in the District Court of the Virgin Islands a motion for custody of Kyoko. The motion is captioned in the original divorce proceeding. It alleges that Mrs. Lennon is a permanent resident of England, and thatKyoko and her father with whom she is living are residents of Spain. Mrs. Lennon also filed a motion that the court enter an order pursuant to 5 V.I.C. § 112 for substituted service by publication of a notice of hearing on her motion for custody. In support of that motion the attorney for Mrs. Lennon filed his affidavit in which he discloses that Anthony Cox and Kyoko had left Spain and were somewhere in the United States, whereabouts otherwise unknown. On June 18, 1971 the District Court ordered:

"that service of Notice of Hearing on Motion for Custody of Minor Child of Yoko Ono Lennon (formerly Yoko Ono Cox) may be made upon Anthony D. Cox by publication of Notice of Hearing in a newspaper of general circulation in the Virgin Islands for four (4) consecutive weeks, together with service of such Notice of Hearing upon counsel of record for Anthony D. Cox, namely, Bailey, Wood & Rosenberg, Professional Building, St. Thomas, Virgin Islands."

The notice of a hearing, to be held on July 26, 1971, was duly published in "The Daily News," St. Thomas. An affidavit of service also discloses that the notice was served on Bailey, Wood & Rosenberg, was mailed to the last known address of Anthony Cox in Spain, was mailed to Mr. Cox care of his brother in New York (returned marked "Moved Left No Address"), care of his father in New York (returned marked "Unclaimed") and to Sewell, Junell & Riggs, attorneys in Houston, Texas, believed to be counsel for Cox.

On July 23, 1971 Bailey, Wood & Rosenberg filed a motion to dismiss. This pleading alleges:

"COMES NOW, Anthony D. Cox, formerly the plaintiff in this action, and appearing specially in this matter by his attorneys BAILEY, WOOD & ROSENBERG, ESQS., for the purpose solely of moving to dismiss the alleged MOTION FOR CUSTODY OF MINOR CHILD, date of June 11, 1971, and does so appear specially and move to dismiss said alleged Motion pursuant to Rule 12(b) F.R.C.P. for all the reasons and defences (sic) stated in said Rule 12(b)."To this pleading was attached a copy of a petition by Anthony Cox to the Court of Domestic Relations, Harris County, Texas, filed July 1, 1971 which alleges that Cox and Kyoko are residents of that county and which seeks a decree of custody. At the hearing on July 27, 1971 Mr. Bailey of Bailey, Wood & Rosenberg appeared and continued to object to the jurisdiction of the district court. The court nevertheless heard the testimony of Mrs. Lennon and another witness. This testimony disclosed that Anthony D. Cox and Kyoko were now residents of Harris County, Texas, and that the parties had recently been involved in litigation in a criminal court in Spain over Mr. Cox's de facto custody of the child and Mrs. Lennon's efforts at self help.

The district court concluded that it had continuing jurisdiction over the subject matter of Kyoko's custody and over the person of Mr. Cox by virtue of 16 V.I.C. § 110 which provides:

"At any time after a judgment is given the court, upon the motion of either party on notice, may set aside, alter or modify so much of the judgment [of divorce] as may provide alimony or, . . . for the care and custody of the minor children. . . ."

It also rejected Mr. Cox's alternative position that it should as a matter of comity defer to the Texas court which concededly had at least concurrent jurisdiction. See Bergen v. Bergen, 439 F.2d 1008 (3d Cir. 1971). On July 30, 1971 the district court entered an order directing Mr. Cox to appear in St. Thomas on September 16, 1971 to show cause why custody should not be awarded to Mrs. Lennon. This order to show cause was served on Bailey, Wood & Rosenberg, and mailed to Sewell, Junell & Riggs, the Houston, Texas attorneys who represented Cox in the Texas custody case.

On August 30, 1971 Mr. Cox filed a notice of appeal from the July 30, 1971 order.

On September 16, 1971 Mr. Bailey informed the court that Mr. Cox would not appear. He advised the court of the notice of appeal and of the fact that Mrs. Lennon had appeared in the Texas proceeding. He then withdrew, and it is clear that he continued to assert Cox's jurisdictional objection. The district court noted that the July 30, 1971 order probably was interlocutory and not appealable, and that in any event no stay had been requested. Fed. R. App. P. 8. The court then heard further testimony from Mrs. Lennon and received in evidence a copy of her answer filed in the Texas proceeding. That answer (Exhibit B in evidence) does not contest the jurisdiction of the Texas court, but does suggest that the Texas court defer to the jurisdiction being asserted by the Virgin Islands Court. On September 24, 1971 the district court filed an opinion, in which it found that Kyoko's custody should be awarded to Mrs. Lennon, and entered an Order as follows:

"IT IS ORDERED, that the paragraph numbered "2"; of the Decree entered herein on January 30, 1969,...