Ex parte Derr
| Decision Date | 16 November 1950 |
| Docket Number | No. 7641,7641 |
| Citation | 224 P.2d 306,70 Idaho 527 |
| Parties | Ex parte DERR. DERR v. McCULLEY et al. |
| Court | Idaho Supreme Court |
John W. Cramer, Lewiston, for petitioner and appellant.
Paul W. Hyatt, Lewiston, for respondents.
Prior to February 4, 1948, appellant and respondent, Eleanor McCulley, were husband and wife. They were residents of the State of Oregon. On the mentioned date at Salem, Oregon, appellant was granted a decree of divorce against such respondent wherein he was awarded the care and custody of their minor daughter, Carolyn Ann Derr, then of the age of five years, with the right of visitation on the part of such respondent. Thereafter, the child was in the custody of appellant at Dayville, Oregon.
On July 15, 1948, respondent, Eleanor McCulley, with the consent of appellant, took the child with her to the home of her mother at Deer Island, Oregon, for a visit. In August, 1948, appellant visited at Deer Island. He was then advised by such respondent that she intended to move to the State of Idaho and she requested his permission to take their daughter with her to Idaho. Appellant consented upon the claimed but disputed condition that Carolyn Ann Derr be returned to him by respondent as soon as respondent was able after the birth of respondent's expected child.
On or about September 1, Eleanor McCulley moved to Canfield, Idaho, bringing Carolyn Ann Derr with her. On September 4, 1948, such expected child was born. On November 6, 1948, Eleanor McCulley was married to respondent, Charles McCulley, and they established their residence on a ranch near Canfield where they have continued to reside. The child, Carolyn Ann Derr, has at all times since on or about September 1, 1948, been in the care and custody of and resided with her mother and since the marriage of respondents, has lived in their home.
On November 17, 1948, appellant demanded possession of Carolyn Ann Derr but his demand was refused. On May 13, 1949, appellant instituted habeas corpus proceedings against respondents for the purpose of securing custody of Carolyn Ann Derr. By their return to the writ of habeas corpus, respondents alleged a change in conditions and circumstances arising since the granting of the Oregon decree and that the best interests of the child required that her care and custody be awarded to the mother. By his answer to such return, appellant, after generally denying the allegations of the return, by way of affirmative answer, alleged the Oregon decree, alleged his fitness to have the custody of the child, alleged the unfitness of Eleanor McCulley to have such custody and alleged that the welfare and best interests of the child required that she be removed from the custody of her mother. The cause was heard by the court and resulted in judgment denying appellant the custody of such child and awarding her custody to respondent, Eleanor McCulley. From such judgment, appellant has appealed to this court.
By his assignments of error, appellant urges that the trial court erred in finding that it had jurisdiction of all the parties and the subject matter of the action; in finding that Carolyn Ann Derr has been a resident of and domiciled in the State of Idaho since on or about the 1st day of September, 1948; and in failing to grant appellant the custody of Carolyn Ann Derr and instead, remanding said child to the custody of her mother. In support of his contention, appellant appears to take the position as shown by his points and authorities, that under the full faith and credit clause of the Federal Constitution, the lower court had no jurisdiction to modify the custody decree of the Oregon court because the child was not domiciled within the State of Idaho; and that 'the only court which has power to alter the status of a minor child as fixed by divorce decree, providing for custody, is the court in which the minor child is domiciled.'
It is the generally accepted rule that under the full faith and credit clause of the Federal Constitution, the courts of one state will give full force and effect to a valid custody decree of another state as long as the circumstances attending the rendition of the decree remain the same; but that custody may be awarded otherwise than in accordance with the original decree upon proof of facts and circumstances arising subsequent to the decree which justify such inconsistent award in the interest of the welfare of the child. Annotation 20 A.L.R. 815; Annotation 160 A.L.R. 408; 17 Am.Jur. 521-3. This rule has been adhered to in Idaho. Stewart v. Stewart, 32 Idaho 180, 180 P. 165; Duryea v. Duryea, 46 Idaho 512, 269 P. 987; Cole v. Cole, 68 Idaho 561, 201 P.2d 98.
Appellant apparently does not contest the foregoing rule but takes the indicated position that the local court has no jurisdiction to do other than enforce the original custody decree where the child is not domiciled in the state and is only temporarily present therein. Appellant cites...
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Clemens v. Kinsley
... ... 43 C.J.S., Note 54, p. 53, supra. Ex parte Derr, 70 Idaho 527, 224 P.2d 306; Wicks v. Cox, 146 Tex. 489, 208 S.W.2d 876, 4 A.L.R.2d 1 ... ' § 32. The minor child's domicil, ... ...
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...While it is true that we have held that full faith and credit in custody disputes may be limited in certain situations; Ex parte Derr, 70 Idaho 527, 224 P.2d 306 (1950); this is not one of those situations. In that case this Court sustained a trial court's judgment modifying an Oregon custo......
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