Frazier v. Merrill
| Decision Date | 18 November 1963 |
| Docket Number | No. 5-3111,5-3111 |
| Citation | 372 S.W.2d 264,237 Ark. 242 |
| Parties | Rachel Merrill FRAZIER, Appellant, v. D. B. MERRILL, Appellee. |
| Court | Arkansas Supreme Court |
Daily & Woods, Ft. Smith, Kerr, Conn & Davis, Oklahoma City, Okla., for appellant.
Hardin, Barton & Hardin, Ft. Smith, for appellee.
This is an appeal from a summary judgment denying a petition for writ of habeas corpus.
Appellant Rachel Merrill Frazier and appellee D. B. Merrill were divorced in Oklahoma by a decree dated September 11, 1961, which apparently divided custody of their tw minor sons, D. B. Merrill, Jr., age eight, and Steven Ray Merrill, age five, between the father and mother. A copy of this decree is not in the record. Thereafter appellant moved to Kansas, taking the boys with her, and there refused to deliver custody of the boys to appellee or even permit him visitation rights. Appellee immediately returned to Oklahoma and on petition, the Oklahoma court amended its original decree giving appellee complete and exclusive custody of the boys. Appellee then returned to Kansas and filed a petition for a writ of habeas corpus. The decree of the Kansas court, entered June 8, 1962, recites that the parties had stipulated that the court had jurisdiction, that appellee should have custody of the older son two months during the summer, and of the younger son one month, that appellee must file a $1,000 performance bond, and that appellee would have all orders of the Oklahoma court subsequent to the divorce decree of September 11, 1961, set aside.
Prior to the granting of this Kansas decree, appellee had the Oklahoma amended decree set aside. Upon obtaining custody of the boys, after posting the bond, appellee returned with them to Oklahoma. Thereafter he filed a new motion in the Oklahoma court to amend the divorce decree, alleging, inter alia:
'That the said order [setting aside all orders in this cause which were made subsequent to the date of the divorce decree of September 11, 1961] was made at the request of this defendant [appellee] because of the fact that at that time another action was pending in the courts of Wichita, Kansas, regarding the custody of said children and that the plaintiff [appellant here] had violated the orders of this court and had taken said children to Wichita, Kansas, and there refused to deliver custody of said children to this defendant as per order of this court; that the defendant was then required to bring action in courts in Wichita, Kansas, for custody of said children and that the attorneys for the plaintiff refused to have any hearing until such time as the orders of this court made subsequent to the divorce decree be set aside; therefore, this defendant [appellee] had said order set aside because of the coercion and demands of the attorneys for the plaintiff in Wichita, Kansas; * * *'
and prayed for exclusive custody of the children. On August 13, 1962, the Oklahoma court again amended its original divorce decree and again granted appellee exclusive custody of the children. No appeal was taken from this decree. Some time thereafter appellee and the boys moved to Fort Smith. On November 27, 1962, appellant petitioned for a writ of habeas corpus in Sebastian Chancery Court. At trial on December 6, 1962, the Chancellor found that the Ordr Amending Decree of the Oklahoma court of August 13, 1962, is a valid decree and entitled to full faith and credit; that appellant made no allegation of changed circumstances affecting the welfare of the children since the date of the Oklahoma Order Amending Decree, or that there existed any material facts unknown to the Oklahoma court on the date of its order, and that no material question of fact existed and thereupon granted appellee's motion for summary judgment and denied appellant's petition for writ of habeas corpus. From the decree appellant has appealed, contending that the Oklahoma order is void on its face and therefore subject to collateral attack.
The Oklahoma statute which authorizes a court to modify or change child custody orders in divorce cases provides, as follows:
Appellant argues skillfully that since there was no allegation of material change of condition or circumstances in appellee's motion to amend the Oklahoma decree nor found in the order of the Oklahoma...
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...Raymond, 343 Ark. 480, 36 S.W.3d 733 (2001) (drawing a distinction between insufficient service and a total lack of service). In Frazier v. Merrill, 237 Ark. 242, 372 Ark. 264 (1963), the court held [A] judgment of a court of general jurisdiction cannot be collaterally attacked, unless the ......
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