Guy v. Guy, 35350

• Court: United States State Supreme Court of Washington
• Citation: 348 P.2d 657,55 Wn.2d 571
• Decision Date: 28 January 1960
• Docket Number: No. 35350,35350
• Parties: Herbert Winchell GUY, Petitioner, v. Marjorie Reid GUY, Respondent and Relator, Superior Court of State of Washington for King County, Eugene A. Wright, Judge, Respondent.

Page 571

55 Wn.2d 571

348 P.2d 657

Herbert Winchell GUY, Petitioner, v. Marjorie Reid GUY, Respondent and Relator, Superior Court of

State of Washington for King County, Eugene A.

Wright, Judge, Respondent.

No. 35350.

Supreme Court of Washington, Department 1.

Jan. 28, 1960.

Summers, Bucey & Howard, Thomas F. Paul, Seattle, for petitioner.

Heckendorn & McNair, James C. Young, Seattle, for respondent and relator.

HUNTER, Judge.

This is a review by certiorari of an order granting a petition for a writ of habeas corpus by the superior court for King county.

The petition for the writ of habeas corpus was based on a divorce decree obtained in the state of Indiana on a cross-complaint of Herbert W. Guy, granting to him the custody of the minor child of the petitioner and respondent. His petition alleges that the superior court of Marion county, state of Indiana, while possessing jurisdiction of the parties and the subject matter, entered a final decree of divorce granting to him an absolute divorce from the respondent and the complete custody of the child. Also, that the divorce action had been instituted by the respondent, with petitioner Mr. Guy filing an amended cross-complaint for divorce and custody of the child; that during the pendency of the divorce action, but before entry of the decree, respondent willfully and wrongfully took the child from Indiana into Washington; that the child was and now is a resident of the state of Indiana, and by virtue of the decree the petitioner was entitled to custody of the child. Further, that the child was being held by respondent, and that such holding was wrongful and unlawful.

A motion to dismiss by respondent was denied and a demurrer to the petition was overruled. Respondent filed her return to the writ of habeas corpus, interposing two affirmative defenses and cross-petitioning for a modification of the Indiana decree as to the custody provisions. The petitioner demurred to the affirmative defenses and cross-petition. The demurrer was sustained. The court heard testimony of the petitioner and respondent, and concluded that full faith and credit should be granted to the decree of a sister state, that the petitioner was entitled, under the decree, to immediate and absolute custody of said child, whereupon it entered an order granting the petition. The order provided it was to be ineffective until 9:00 a.m., October 6, 1959, to give respondent an opportunity to have the action of the court reviewed by writ of certiorari. The writ was issued by this court on October 5, and the review of the order is now before us.

The relator's assignments of error raise only one issue essential to the determination of this review. Did the court err in sustaining the petitioner's demurrer to the cross-petition, thereby refusing to hear on the merits the issue of modification of the custody provision of the Indiana divorce decree?

For the purpose of considering the trial court's ruling sustaining the petitioner's demurrer, all the facts alleged in the cross-petition are assumed to be true. The relator alleges she instituted an action for divorce in the state of Indiana in November, 1957; that she abandoned her action and came to the state of Washington in June of 1958, intending to reside permanently in this state with her child; that no appearance, pleading, or cross-complaint had been filed by the petitioner at that time; that she did not leave the state of Indiana in violation of any court order or decree; that the petitioner could have at all times determined her whereabouts by inquiring of mutual friends or her former attorney in Indiana; that she and her child have continuously resided in Seattle since coming to Washington in June of 1958; that since the entry of the Indiana decree of divorce in March of 1959, the circumstances of relator, her son, and her former husband have changed and, by reason of these changed conditions, it is for the welfare of the minor child that the Indiana decree be modified if this court should hold it to be a valid decree; that the relator is a fit and proper person to have the custody of the minor child; that she has provided a good home with proper moral and educational training for the boy; that he is now attending Rich Whitman School, a private school; that he has made many new friends in Seattle, and has developed strong social and emotional ties with them; that he attends church regularly, and the relator spends practically all of her nonworking hours with her son; that he is being taught to honor and respect his father; that the relator obtained employment as a medical secretary shortly after arriving in Seattle, has remained at that position ever since, and is able to support herself and her child; that the father is employed as a musician, spends practically every night away from home and does not come home until the early hours of the morning; that he is also employed full time as a musician during the day and is away from home almost entirely every day; and that he has furnished no support for the child since the relator moved to this state.

From the above facts it is clear, the trial court erred in sustaining the petitioner's demurrer, in the event that the trial court has jurisdiction to modify the Indiana divorce decree. This review then narrows down to the single issue: Does the superior court for King county have jurisdiction to modify the Indiana divorce decree?

This question can be resolved by the application of the full faith and credit clause of the United States constitution, Art. IV, § 1, as interpreted in People of State of New York ex rel. Halvey v. Halvey, 1947, 330 U.S. 610, 67 S.Ct. 903, 906, 91 L.Ed. 1133. The facts are similar to the instant case. In that case the Halveys resided in New York. Mrs....