Goss v. Goss, 88-267

• Decision Date: 06 September 1989
• Docket Number: No. 88-267,88-267
• Citation: 780 P.2d 306
• Parties: Martin J. GOSS, Appellant (Plaintiff), v. Pamela J. GOSS, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 306

780 P.2d 306

Martin J. GOSS, Appellant (Plaintiff), v. Pamela J. GOSS, Appellee (Defendant).

No. 88-267.

Supreme Court of Wyoming.

Sept. 6, 1989.

Phillip T. Willoughby, Casper, for appellant.

John M. Burman and Ann B. Stevens, Faculty Supervisors, Linda L. Goff and Donald M. Gerstein, Student Legal Interns, Wyoming Legal Services, College of Law, University of Wyoming, Laramie, for appellee.

Before THOMAS, URBIGKIT, MACY, and GOLDEN, JJ., and ROONEY, J., Retired.

THOMAS, Justice.

The controlling issue here, guiding the resolution of this case, is whether sufficient service was made on an ex-wife (mother) of a Petition for Modification of Order Judgment and Decree to vest the district court with jurisdiction to enter a default judgment modifying the custody provisions of the Order, Judgment, and Decree in a divorce case. In this appeal, taken from a subsequent Order Awarding Legal Custody of the Minor Children to Defendant--Judgment for Past Due Child Support that was entered in a proceeding initiated by the mother, the parties choose to debate the merits of that order, and they do not question the validity of the earlier default. We have an obligation to raise questions of jurisdiction on our motion In the Brief of Appellant Martin J. Goss, the father asserts the issues on appeal to be:

however, and we conclude that the district court was without jurisdiction to enter the default judgment modifying the child custody provisions in the Order, Judgment and Decree. The effect of that lack of jurisdiction is that the order awarding the custody of the minor children to the father in the initial modification proceeding was void, and the subsequent proceeding initiated by the mother which resulted in the order from which this appeal is taken was unnecessary in terms of adjusting the status quo. The several claims of error can be considered only upon the assumption that the issues as joined contemplated an effort by the divorced husband (father) to obtain a valid order awarding custody of the minor children to him. We affirm the decision made by the district court awarding custody to the mother.

"1. Did the trial court err by failing to enforce its order of custody?

"2. Did the trial court err ruling the evidence presented was sufficient to award custody of the minor children to the appellee?

"3. Did the trial court err and abuse its discretion awarding custody of the minor children to the appellee?

"4. Did the trial court err as a matter of law by failing to consider the best interests of the children in a child custody dispute, and by considering instead only the best interests and wishes of the mother?"

In the Brief of Appellee, the mother submits her own statements of those issues as follows:

"Did the trial court properly exercise its discretion in awarding child custody to appellee?

"I. Did the trial court have legal justification to not enforce its earlier custody order?

"II. Was there sufficient evidence to find that appellee was the proper parent to receive custody?

"III. Did The trial court consider the best interests of the children?"

We consider the issues framed by the parties in their respective briefs from the perspective that the case presents an effort by the father to gain custody. We address those issues from that perspective because, as stated, they assume the validity of an earlier order that modified the custody provision of the Order, Judgment and Decree by awarding custody to the father. Based upon that assumption, the parties argue the usual requirements for modifying custody from the premise that this subsequent proceeding initiated by the wife was designed to alter the status quo and, therefore, certain evidentiary burdens were imposed upon the mother. In the absence of jurisdiction in the district court to enter the first order that modified child custody, all of the assumptions in the case now before us are erroneous.

By an Order, Judgment and Decree entered on July 30, 1981, the marriage of the parties was dissolved. A divorce was granted to the father, and custody of the three minor children of the parties was placed with the mother. The father was awarded reasonable rights of visitation, and he was required to pay child support in the amount of $100 per month per child. Each of the parties subsequently remarried and, in August of 1983, both were living in Germany. The father was stationed there as a member of the United States Army, and the mother was living there because of her new husband's duty assignment with the United States Army. The mother took the children to the father for a period of visitation that was to end prior to the beginning of their new school term on August 27, 1983. Although the father was aware of the mother's residence, he had not seen the children in the more than two years since the divorce. Three days before school was to begin, the mother asked the father to return the children to her, but he did not return them. Instead, on September 23, 1983, the father caused to be filed in the original divorce case a Petition for Modification of Order, Judgment and Decree in which he prayed for a modification granting him permanent care and custody of the children. In a letter to his counsel The father attempted to serve process on the mother through notice by certified mail addressed to the army post office address of her new husband. That letter was returned by the postal service marked "refused by addressee." The father then attempted service upon the mother by publication in the Casper Star Tribune. The mother did not respond to the father's petition; her default was entered; and the order modifying custody was entered on January 27, 1984, awarding custody to the father. Meanwhile, in Germany, the mother had retrieved her children from the father's custody with the help of German police. That occurred a short time before the filing of the modification order. From the time the children were returned until December of 1987, the father provided no child support, contacted the children only once, and made no request for visitation with them. During that period, he knew where to contact the mother and the children.

that is included in the record, the father refers to a letter from the attorney, dated August 5, 1983, requesting information about the children, which certainly supports an inference that the father planned to seek custody before the visitation period was initiated.

On March 20, 1987, the mother, continuing in the original divorce proceeding, filed a Petition for Modification--Motion for Order Granting Temporary Custody--Motion for Order Granting Permanent Custody--Motion to Set Child Support and Enter Income Withholding Order. Personal service of that pleading was made upon the father. The petition alluded to the order entered on January 27, 1984 and sought permanent custody of the minor children for the mother. The issues in the proceeding then were joined by an Answer, a Motion for Order to Require Physical and Mental Examination of the Minor Children, and a Motion for Physical Custody, pursuant to which the father sought enforcement of the earlier order, all filed on June 4, 1987.

The trial on the mother's petition was commenced on January 11, 1988, but it was not finished and the proceedings were continued until April 28, 1988. In the meantime, a Temporary Custody and Support Order Continuance had been entered on September 3, 1987, awarding temporary custody to the mother. When the proceedings were recommenced on April 28, 1988, the father presented evidence that the mother had been dating and had intended to marry a man who recently had plead guilty to a charge of sexually assaulting the female child. The father contended that the mother was maintaining her relationship with that individual, and he argued that her behavior demanded that custody of the three children be immediately changed to him. The district court considered the mother's continuing association with the sexual offender a threat to the welfare of the children, and it concluded that it would be appropriate to allow the mother some time to decide whether she, in fact, would continue that association. Temporary custody then was granted to the father until the trial could be completed. The father later sought a further continuance, and the court then returned temporary custody to the mother while, at the same time, setting the trial for August 1, 1988.

After the trial, the court announced its decision:

"I don't have any doubt that each of these parties love the children in their own way. However, I seldom see a case like this.

"There can be no excuse for the Mother's activities as far as those involving Mr. Patterson. I think she continued a relationship when one would have thought there would be hate rather than that.

"But on the other hand, there can be no excuse for Mr. Goss to ignore the children for years and leave the Mother alone with the children to raise the children.

"There can be no excuse for either party thinking of themselves as better and disregarding the welfare of the children.

"And there can't be any excuse for the Father and his conduct with the children when he had them in discussing the case * * * * * *

with them, belittling the Mother as he did.

"Back in '83, apparently the Mother asked for some help and left the children with the father for a period of what, six months. I know there was an argument about whether she could get them back or whether she couldn't. But as I followed the evidence, the attempts at modification after that should not hold because I think he could have found the Defendant had the Plaintiff wanted to find her.

"It will be the ruling of the Court that the Mother be awarded the custody of the children. She gave birth to the children. She was there for those years all alone. I can't forget that.

"No evidence has really been shown out of the Patterson thing that she isn't a good and loving Mother." (emphasis added).

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