Custody of Miller, In re

• Decision Date: 08 April 1976
• Docket Number: No. 43830,43830
• Citation: 86 Wn.2d 712,548 P.2d 542
• Parties: In re the CUSTODY OF Joseph Kaley MILLER et al. Josephine Ann MOSES, Petitioner, v. Gilbert James MILLER, Respondent.
• Court: Washington Supreme Court

Page 712

86 Wn.2d 712

548 P.2d 542

In re the CUSTODY OF Joseph Kaley MILLER et al.

Josephine Ann MOSES, Petitioner, v. Gilbert James MILLER, Respondent.

No. 43830.

Supreme Court of Washington, En Banc.

April 8, 1976.

John L. Jarrett and Roger Coombs, Spokane County Legal Services, Spokane, for appellants.

John D. MacDougall, Andrew C. Braff, Stevens County Pros. Attys., Colville, for respondent; Lewis H. Orland, Spokane, amicus curiae.

This opinion was prepared by Justice ROBERT C. FINLEY before his death. It is adopted by the undersigned Justices as the opinion of this Court.

FINLEY, Associate Justice.

In this matter, the issue is whether it was error for the Superior Court of Stevens County to deny permanent custody to the mother of four minor children solely on the ground that the court lacked in personam jurisdiction over the nonresident father of the children.

We reverse the trial court and hold that it has in personam jurisdiction because (1) the record contains evidence indicating the commission in Washington of a tortious act, namely child nonsupport by the father, and (2) this tortious act permits the extension of jurisdiction under Washington's long-arm statute (RCW 4.28.185), without offending the minimal due process standards established in International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95, 161 A.L.R. 1057 (1945).

The decision in May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953), seems to have become something of a sacred cow in the law of domestic relations but, we think, with about as little rationality as attributable generally to the idolization of most sacred cows. In May v. Anderson, supra, the Court seems to have overlooked, or perhaps closed its eyes to Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950), with its potential for an accommodation of any due process difficulties in custody cases. Certainly the Court ignored the practical, critical and crucial problems with which courts, parents and children frequently are faced in custody proceedings. Essentially, the Court seems to have failed to recognize the inappropriateness of requiring in personam jurisdiction over both parents as an Indispensable ingredient of a custody proceeding. Suffice it to say that the Supreme Court's timid approach to concepts of state court jurisdiction has been criticized vigorously. ¹ We believe that the May v. Anderson decision has lost the vitality it may once have had and should be overruled. Fortunately, because of the availability of Washington's long-arm statute, ² and because of the facts of the instant child custody case, May v. Anderson does not present an insurmountable obstacle to the reasonable and effective administration of justice in the instant case.

Petitioner, Josephine Moses, is the mother of four children, two boys and two girls, aged from 4 to 8 years. All are Washington domicilaries and reside in Stevens County. The putative, but not duly married, father, Gilbert Miller, resides in Idaho and is domiciled there.

On December 26, 1974, the father brought the four children, ill-clad and in an unkempt condition, to the mother's home where he delivered them to her. The record does not reflect where the parents lived prior to the time the children were turned over to the mother. On January 6, 1975, the mother filed a summons and petition in Stevens County Superior Court seeking a decree (1) awarding her permanent custody of the children, subject to reasonable rights of visitation, and (2) ordering the father to pay child support. A copy of the summons and petition was served personally on the father in Idaho on January 16, 1975, but he failed to respond. The mother later caused a notice of intent to take default to be mailed to the father at his Idaho address. The father again did not respond.

Also, on January 6, 1975, the mother filed a motion in the case to enable her to proceed in forma pauperis. The accompanying affidavit fully discloses her impoverished financial status. Listing the sources of any income or other funds received from January 1, 1974, to January 3, 1975, the mother stated that during this period of time she received certain Per capita payments, apparently to be used for necessities only for the boys, and that she worked for a short time at the Native American Center in Spokane. The affidavit also lists all of her expenses, debts and assets. It is apparent that, if the mother had received any income for the support of the children from the father, this fact would have been reflected in the affidavit. Thus, the affidavit provides a convincing, if not inescapable, evidentiary inference that the father has not provided for the support of the children. Such an inference from the affidavit is consistent with the provision of the petition requesting the assistance of the court in obtaining child support from the father.

On March 28, 1975, the trial court held a hearing on the mother's petition in the superior court at which she sought an order of default and an entry of findings of fact, conclusions of law and a decree awarding her custody of the children. The trial judge took the matter under advisement and on April 11, 1975, returned to the mother's attorney the unsigned findings, conclusions and decree with a letter explaining that the superior court lacked jurisdiction to award custody to the mother without in personam jurisdiction over the father.

The mother then filed an application for a writ of certiorari to the Supreme Court. The writ was granted, and on August 22, 1975, we remanded the case to the trial court for the entry of an order disposing of the mother's application for a child custody decree. Jurisdiction was retained for the purpose of review. On September 2, 1975, the trial judge signed an order denying the mother's motion for the entry of findings, conclusions and decree. The first writ of certiorari was amended with the consent of petitioner and the prosecuting attorney to show that the September 2, 1975, written order had been signed and filed as indicated.

The application for the original writ of certiorari was premature. The trial court had not made a final determination which is necessary in order to make the application for the writ. RCW 7.16.030--.040; See State ex rel. Thomas v. Lawler, 23 Wash.2d 87, 159 P.2d 622 (1945). A writ of certiorari may be treated as a writ of mandamus, it being so in substance. See Tuschoff v. Westover, 60 Wash.2d 722, 375 P.2d 254 (1952); State ex rel. Pacific Fruit & Produce Co. v. Superior Court, 22 Wash.2d 327, 155 P.2d 1005 (1945). A writ of mandamus is not premature because it was the duty of the trial judge to complete the exercise of the court's jurisdiction by entering findings, conclusions and judgment of dismissal to embody his view that the court lacked jurisdiction. That duty was not discharged even by the entry of the written order of September 2, 1975. A writ of mandamus lies to compel performance of that duty. See State ex rel. Pacific Coast Adjustment Co. v. Taggart, 159 Wash. 201, 204, 292 P. 741 (1930).

Although there may not be sufficient evidence in the record to indicate that the father had delivered the children to the mother in Washington For the purpose of abandoning them, there is ample evidence to show that he Has failed to support them. The distinction between abandonment and nonsupport is crucial. They are not synonymous; nonsupport in and of itself does not constitute abandonment. Smith v. Smith, 67 Idaho 349, 180 P.2d 853 (1947). The term 'abandonment' means the voluntary failure or neglect To care for as well as the failure to support, i.e., furnish necessary food, clothing and shelter, a child. See In re Adoption of Lybbert, 75 Wash.2d 671, 674, 453 P.2d 650 (1969); In re Adoption of Webb, 14 Wash.App. 651, 544 P.2d 130 (1975); In re Paden, 181 Misc. 1025, 43 N.Y.S.2d 305, 308 (1943). The duty to 'care for' includes the parental obligation to train, supervise and guide a child's growth and development. In re Estate of Musczak, 196 Misc. 364, 92 N.Y.S.2d 97, 99 (1949). Nonsupport, on the other hand, connotes a failure to contribute to the maintenance and material well-being of a child. In re Estate of Musczak supra at 100; see RCW 26.20.030(1)(b) (failure to 'furnish necessary food, clothing, shelter, or medical attendance.')

The distinction between abandonment and nonsupport is reflected further by the statutory scheme providing for criminal nonsupport prosecution under RCW 26.20.030. ³ Under that statute, abandonment is distinguished from nonsupport. Huffman v. Smith, 34 Wash.2d 914, 918, 210 P.2d 805 (1949); See State v. Russell, 68 Wash.2d 748, 755, 415 P.2d 503 (1966); State v. Brown, 52 Wash.2d 92, 94, 323 P.2d 239 (1958).

The failure of a parent to support his or her children constitutes a tort. In State ex rel. Nelson v. Nelson, 298 Minn. 438, 216 N.W.2d 140, 143 (1974), a filiation proceeding, the court stated:

The doing of an act prohibited by law or the neglect to perform a duty imposed by law, resulting in damages to another, creates a legal liability, and may be denominated a tort within the scope of the long-arm statute.

(Citation omitted.) Accord, Gentry v. Davis, 512 S.W.2d 4, 6 (Tenn.1974) (a filiation proceeding in which the long-arm statute was applied). In Nelson, the court concluded that the father's failure to perform his statutory duty to support his child caused foreseeable damages to the complainant and provided a sufficient basis upon which to exercise in personam jurisdiction under the long-arm statute. See Ratner, Child Custody in a Federal System, 62 Mich.L.Rev. 795, 839 (1964).

In Washington, a parent has both a statutory and a common-law duty to support his or her children. For example, a putative father's duty to support his children can be enforced judicially on behalf of the children by a filiation proceeding (RCW 26.24), or under the...