Ellis v. Nickerson, 3106-III-3

• Court: Court of Appeals of Washington
• Writing for the Court: ROE; GREEN, C. J., and McINTURFF
• Citation: 604 P.2d 518,24 Wn.App. 901
• Parties: Dave Henry ELLIS, Respondent, v. Lori Lee Ellis NICKERSON, Appellant.
• Docket Number: No. 3106-III-3,3106-III-3
• Decision Date: 18 December 1979

Page 901

24 Wn.App. 901 604 P.2d 518 Dave Henry ELLIS, Respondent,
v.
Lori Lee Ellis NICKERSON, Appellant. No. 3106-III-3. Court of Appeals of Washington, Division III, Panel Four. Dec. 18, 1979.

Page 902

Dan Stormer, Richard Smith, Lawrence Weiser, Spokane Legal Services Center, Spokane, for appellant.

[604 P.2d 519] Raymond R. Tanksley, Jr., Tanksley, Richard, Padden & Derr, Spokane, for respondent.

ROE, Judge.

Lori and Dave Ellis were married in Missouri in 1963 and have three children, born in 1967, 1969, and 1971, respectively. In June 1973, a Missouri divorce court having jurisdiction over the parties granted a default divorce and awarded custody of the children to the mother. In October 1973, the Missouri court modified the divorce decree in regard to visitation and support, but not as to custody of the children.

Beginning in 1974, the ex-wife and three children moved from state to state, settling in Colorado in June 1975. Eight months later, she was personally served at her residence in Colorado with a summons and petition to appear in Missouri to defend an action instituted by the ex-husband seeking custody of the children. She consulted counsel in Colorado and was advised not to appear in the Missouri action. In June 1976, having heard nothing more regarding the new Missouri action, she moved to Idaho. In April 1977, some 13 months after having been served in Colorado, a default decree was entered in Missouri awarding custody of the three children to the ex-husband father. Later that April Lori Ellis, her husband, Mr. Nickerson, and the three

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children moved to Colville, Washington, where they presently reside.

Mrs. Ellis Nickerson (as referred to by her counsel) first learned of the Missouri default judgment against her when the Stevens County Sheriff removed the children from her pursuant to a warrant issued in an ex parte habeas corpus action instituted by Mr. Ellis to enforce the Missouri default custody decree. However, Mrs. Ellis Nickerson was then awarded temporary physical custody of the children. Later, even though Mrs. Ellis Nickerson asked the trial court to make a custody determination based on the children's best interests, the trial court held that it had no jurisdiction in the case other than to give full faith and credit to the Missouri default judgment. Consequently, custody of the children was ordered transferred to Mr. Ellis.

Still later, the commissioner of this court stayed the trial court's order pending appellate review. Mrs. Ellis Nickerson retained custody of the children during the pendency of this case. Mr. Ellis has not seen the children in 5 years.

Mrs. Ellis Nickerson first assigns error to the trial court's conclusion that the Missouri court had jurisdiction to modify the divorce decree by changing custody. Though we have serious doubts about the assertion of jurisdiction by the Missouri court claiming children in divorce actions are continuous wards of the divorce court, thus precluding modification in another state, it is not necessary for us to reach that question in light of our decision.

Mrs. Ellis Nickerson also assigns error to the trial court's concluding that full faith and credit must be given to the Missouri modification order and hence is permanently deprived of jurisdiction to consider the merits. The United States Supreme Court has never fully answered the question of whether a state must give full faith and credit to a sister state's child custody modification order. See Kulko v. Superior Court, 436 U.S. 84, 98 S.Ct. 1690, 56 L.Ed.2d 132 (1978); Ford v. Ford, 371 U.S. 187, 83 S.Ct. 273, 9 L.Ed.2d 240 (1962); Kovacs v. Brewer, 356 U.S. 604, 78 S.Ct. 963, 2 L.Ed.2d 1008 (1958); May v. Anderson, 345 U.S.

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528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953) (involving the initial award of custody); New York ex rel. Halvey v. Halvey, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133 (1947).

The rule in Washington is that full faith and credit need not be given to a sister state's custody decree. Guy v. Guy, 55 Wash.2d 571, 348 P.2d 657 (1960). In Guy, where the father petitioned for a writ of habeas corpus, the court held that as long as all parties were before the court, the trial court had at least the same right to modify a foreign decree as did the foreign court. The Guy court at pages 574-75, at page 660 of 348 P.2d quoted New York ex rel. Halvey v. Halvey, supra :

[604 P.2d 520] The general rule is that this command (U.S.Const. art. 4, § 1) requires the judgment of a sister State to be given full, not partial,...