Guardianship of Rodgers, In re
| Decision Date | 27 April 1966 |
| Docket Number | No. 8706,8706 |
| Citation | 413 P.2d 744,100 Ariz. 269 |
| Parties | In the Matter of the GUARDIANSHIP OF the person of Dena Lynn RODGERS, a Minor. In the Matter of the application for a writ of habeas corpus for Dana Lynn RODGERS, a Minor. James Lee RODGERS, Appellant, v. Catherina DE ARMAN, Appellee. P.R. |
| Court | Arizona Supreme Court |
Skousen, McLaws & Skousen, Mesa, for appellant.
Cavness, DeRose, Senner & Foster, Phoenix, Beeler & Tippett, Globe, for appellee.
This matter comes to us from the Superior Court of Gila County on a petition for a writ of certiorari, consolidated by the trial court with a writ of habeas corpus. The Court of Appeals, Division two, decided the matter by written decision, In re guardianship of Rodgers, 2 Ariz.App. 51, 406 P.2d 253, and the case is now before us on a petition for review, A.R.S. § 12--120.24, 17 A.R.S. Rule 47(b), Rules of the Supreme Court.
This case involves litigation between a mother and a father over custody of their eight year old daughter. The Superior Court, after consolidating a hearing on a writ of habeas corpus brought by the father and a petition for appointment of guardian made by the mother, awarded custody to the mother.
The mother and father were divorced in Graham, Young County, Texas, on May 25, 1961. The custodial provision of the divorce decree awarded custody of the couple's two children to the father for three months of each year. The father was to have cutody for June, July and August with the mother retaining custody from September through May of each year.
On August 11, 1961, the mother remarried. She and her present husband lived in Texas until sometime around May 15, 1964, when they moved to Winkleman, Arizona. Around the end of July, 1964, the couple moved to Globe.
Under the terms of the Texas divorce, when the children were under their father's custody they were to live in the household of his parents, their grandparents. At the end of July, 1964, the mother and her husband went to Terrell, Oklahoma, the residence of the father's parents, to bring her children back to Arizona. When informed that her son and daughter were living with the father's sister, the mother left for Nakoma, Montague County, Texas, with her husband to get custody of them.
At Nakoma the mother was refused her two children and served with a subpoena to appear in court in three days, on September 4, in regard to a custody hearing. The mothr hired Texas counsel to represent her, but because of the immediacy of the hearing and the distance between Winkleman, Arizona and Nakoma, Texas, she was without the assistance of witnesses. 1
On September 4, the Texas court granted temporary custody to the father and enjoined the mother from interfering with his custody during the pendency of the cause. On September 29, the mother and her husband left the jurisdiction with the daughter.
On October 8, 1964, the Texas action came on regularly for trial. Being in Arizona the mother and child were not present, nor had they retained counsel. On October 9, the Texas court, in a written judgment, found that the mother was in default and that since there had occurred a change of conditions the father was to have complete custody of the child. There was no appeal from this judgment.
When the Superior Court of Gila County heard the oral arguments on the writ of habeas corpus and the petition for appointment as guardian it made the following findings:
'It is further the finding of the court that the decree, (the Texas decree) * * * is void on its face in that it purports to modify the divorce decree entered in a different county, and on its face does not recite the jurisdictional facts necessary to constitute jurisdiction to change an order of custody.
'Further, the finding of the Court that the evidence shows the present conditions and circumstances of the petitioner, * * * are adequate and are in the best interest of the child.'
The father contends the Texas decree of October 9, 1964, awarding him full custody of the children is entitled to be considered res judicata under the full faith and credit clause of the Federal Constitution, Art. 4, § 1, in the absence of a finding in the court below of a change of circumstances.
A custody decree precludes, by its very nature, that degree of permanence and finality requisite for a strict application of the full faith and credit clause. A custody provision under a divorce decree must be given full faith and credit in other states as to the right of the custody of a child At the time and under the circumstances of its rendition. Foster v. Foster, 8 Cal.2d 719, 68 P.2d 719.
'Whatever effect, the Full Faith and Credit Clause may have with respect to custody decrees, it is clear, as the Court stated in Halvey, 'that the State of the forum has at least as much leeway to disregard the judgment, to qualify it, or to depart from it as does the State where it was rendered. * * * " Kovacs v. Brewer, 356 U.S. 604, 607, 78 S.Ct. 963, 966, 2 L.Ed.2d 1008.
The best interests and welfare of the child would be subverted if an ironclad rule to the contrary were to be accepted. Texas, the jurisdiction from which the child was taken, also gives full faith and credit to foreign custody decrees unless a change of circumstances has occurred. Bull v. Wilson, Tex.Civ.App., 362 S.W.2d 662.
However, we do not want to be understood as suggesting that parties to such litigation may, after a court has heard evidence upon their fitness and made a ruling, immediately invoke the powers of a court to have it inquire into the Same facts existing at the time of or prior to the former decree. This would permit interminable and vexatious litigation.
We believe the Superior Court finding that the 'conditions and circumstances' of the mother 'are adequate and are in the best interest of the child' is, under the facts of the case, a clear finding there was a change of circumstances.
The trial court was of the opinion that the father's evidence of the mother's past conduct (the trial below took place on October 27, 1964, and the complained of past conduct on the mother's part took place on and after August 11, 1961) was immaterial but permitted a statement for the record of what he intended to prove.
For the record the father offered to prove the mother stabbed her present mother-in-law while in Texas and as a consequence was charged with assault with intent to commit murder requiring a $5000 bond. The father also offered to prove the mother and her present husband were drunk on several occasions in the State of Texas and were jailed. As to the intent leading to the charge of assault with intent to commit murder the record indicates the mother might have been acting in self-defense. However, the Superior Court was of the belief that such evidence was presently irrelevant and did not desire to hear it developed.
The Superior Court finding, here at issue, in relation to the mother, is of such contrast with the father's description of the mother, that it leads to the inescapable conclusion that court found a change of circumstances and that the best interests and welfare of the child would be served by placing her with her mother.
A reading of the reporter's transcript of the proceedings shows the mother presented eight witnesses to testify on her behalf. The witnesses included a community chief of police 2 who was a neighbor of the mother, a welfare department worker 3 who was also a neighbor of the mother, a baby sitter, 4 a Baptist Church minister, 5 and a minister of a Baptist mission. This uncontradicted testimony lends meaning to and supports the court's finding. A.R.S. § 25--321 and the father's contention that there was no showing of a change of circumstances raises the issue of whether a showing of a change of circumstances is necessary before a court can alter a former custody decree. A.R.S. § 25--321 provides as follows:
'The court may from time to time after entry of final judgment, on petition of either party, amend, revise and alter the portions of the decree which relate to payment of money for the support and maintenance of the wife or the expenses of the proceedings, as may be just, and may amend, change or alter any provision of the judgment respecting the care, custody or maintenance of the children of the parties as circumstances of the parents and Welfare of the children require.' (Emphasis supplied)
In Cone v. Righetti, 73 Ariz. 271, 240 P.2d 541 we said of A.R.S. § 25--321:
'* * * before the court has authority to change the custody of a minor child it must be shown that there had arisen a change in the conditions or circumstances Surrounding the children affecting their general welfare and that it would be for Their best interests that...
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