Hoefer v. Hoefer

• Decision Date: 29 June 1960
• Docket Number: No. 6598,6598
• Citation: 1960 NMSC 60,67 N.M. 180,353 P.2d 1066
• Parties: Betty Jean HOEFER, Plaintiff-Appellee, v. James Richard HOEFER, Defendant-Appellant.
• Court: New Mexico Supreme Court

Page 1066

353 P.2d 1066

67 N.M. 180

Betty Jean HOEFER, Plaintiff-Appellee, v. James Richard HOEFER, Defendant-Appellant.

No. 6598.

Supreme Court of New Mexico.

June 29, 1960.

Shipley, Seller & Whorton, Alamogordo, for appellant.

C. C. Chase, Jr., Alamogordo, for appellee.

MOISE, Justice.

This case involves the question of whether or not the district court of Otero County, New Mexico, properly entered an order granting custody of the minor child of the parties to the appellee-wife, when a court in Kansas had previously entered an order granting the custody to the appellant-husband.

The facts out of which the dispute arose are as follows. Appellant-husband and appellee-wife were previously married and one child had been born as a result of this marriage. The child, Mark Richard Hoefer, was seventeen months old when his parents were granted an interlocutory decree of divorce in the district court of Reno County, Kansas, in October, 1955. The custody of the minor child was at that time placed with the paternal grandmother by stipulation of the parties. Thereafter, on March 30, 1956, on petition of appellee the custody order was changed so that appellee was given the custody, subject, however, to a provision that the child not be removed from the jurisdiction of the court without first having obtained a court order. In March, 1957, appellee left the minor child with her mother in Kansas, and came to Alamogordo, Otero County, New Mexico, to work. In the summer of 1958, appellee brought the minor child with her to New Mexico and upon her failure to return him after the passage of some two months, the appellant, on August 18, 1958, asked the Kansas court to change the custody and grant the same to him. This motion was set for hearing on September 12, 1958, at which time one Arthur H. Snyder, who had been appellee's attorney of record in the divorce proceedings, appeared on behalf of appellee and asked a continuance to October 1, 1958. This was denied, but a continuance to September 20, 1958, was granted. On that date, the Kansas court changed the custody order, granting full custody to appellant, and finding appellee was not a proper person to have the custody. At this hearing on September 20, 1958, Arthur H. Snyder did not appear, but advised the court that he no longer represented appellee.

On September 19, 1958, the day before the date set for hearing on the motion in Kansas, appellee filed this action alleging that she was a resident of New Mexico, and that the minor child resides with her, that appellant was undertaking to have the custody decree modified in the state of Kansas, that she had not been served with any process, that she is a fit and proper person to have the custody, and that to prevent appellant from attempting to remove the minor child from the jurisdiction of the New Mexico court she should be granted the temporary custody of the child pending hearing and then be granted permanent custody. Thereafter, appellant filed his answer setting up the Kansas proceedings, including an order entered September 20, 1958, finding appellee to be an improper person to have the custody and granting the same to appellant, and filed a counterclaim asserting full faith and credit should be given the Kansas order. A hearing was had on this state of the record and the court after making findings of fact and conclusions of law entered an order granting the custody to the appellee and ordering appellant to contribute monthly to the support and maintenance of the child. Appellant has appealed setting up four claimed errors as follows:

1. 'The appearance of his Plaintiff as Defendant in the Reno County, Kansas Court at the hearing on September 12, 1958, was a general appearance, and the Kansas Court had complete jurisdiction to render the judgment of September 20, 1958.

2. 'The judgment of the District Court of Reno County, Kansas, made on September 20, 1958, being regular and valid on its face, was not subject to collateral attack in the absence of a pleading alleging fraud or lack of jurisdiction.

3. 'The judgment of the District Court of Reno County, Kansas, made on September 20th, was res judicata as to all matters affecting the custody of the minor child of the parties at that time and effectually barred further prosecution of the Otero County case between these parties as to the matters adjudicated by the Kansas Court.

4. 'By reason of the judgment of the Kansas Court on September 20, 1958, all questions involved in Plaintiff's petition were moot and the Trial Court should have dismissed her case and ordered the child delivered to the Defendant under his Cross-Complaint.'

Concerning point 1 and the effect of the appearance of Mr. Snyder to ask for a continuance of the matter, it should be sufficient answer to appellant's contention to cite the case of Kruse v. Kruse, 150 Kan. 946, 96 P.2d 849, syllabus 1 of which reads as follows:

'Where husband brought suit for divorce in Missouri where he and his wife were then domiciled, and Missouri court gave custody of child to the wife, but thereafter entered a decree giving custody of child to husband while child was in Kansas where wife took child after divorce, child's domicile was in Kansas, and Missouri court did not thereafter acquire jurisdiction over child on husband's subsequent proceeding to have decree modified, though wife filed a motion for continuance therein.'

It seems to us that points 2, 3 and 4 can best be discussed together as they raise the question of the legal effect of the Kansas custody decree and the order purporting to modify it entered September 20, 1958. Can such decrees and orders be attacked collaterally in the absence of a pleading of fraud or lack of jurisdiction, and are they res judicata so as to bar prosecution of the case in the Otero County district court, and were the questions raised by appellee's petition moot by virtue of the order of the Kansas court on September 20, 1958?

Appellant places principal reliance upon the decision of this Court in the case of Wise v. Wise, 55 N.M. 461, 235 P.2d 529. However, we do not consider that case to be controlling, the question there involved being one of jurisdiction of the New Mexico court to entertain a divorce proceeding and questions of child custody when an interlocutory decree had already been entered in California which order became final while the appeal was pending. The court held the question to be moot.

However, we do not consider this case controlling under the facts here present. The cases of Mylius v. Cargill, 19 N.M. 278, 142 P. 918, L.R.A.1915B, 154; Payton v. Payton, 29 N.M. 618, 225 P. 576; Bassett v. Bassett, 56 N.M. 739, 250 P.2d 487, and Albright v. Albright, 45 N.M. 302, 115 P.2d 59, 60, all discuss certain aspects of jurisdiction and powers of courts when custody decrees of sister states are brought into question.

Of these Albright v. Albright, supra, is closest on its facts. In that case we recognized that full faith and credit must be given under certain circumstances to decrees of sister states. We also pointed out that it was no denial of full faith and credit when upon a showing of changed circumstances a change of custody was decree, and stated that 'only such changed circumstances which, in the mind of the court and with the best interest of the child as the one consideration, clearly persuaded in favor of a change in custody, would justify its decree so directing.'

The instant case, however, does not involve any issue of changing a prior custody order of a sister state. Rather, the question is one of the right of the New Mexico court to pass upon the question of custody in a situation where the Kansas court which had first granted custody to the mother, later modified that decree to give the custody to the father, after the mother in good faith had changed her domicile and also the domicile of the child to the state of New Mexico.

Aside from any prior decisions by this Court, the Supreme Court of Kansas has clearly laid down the reles applicable in that court in the cases of In re Bort, 25 Kan. 308; Wear v. Wear, 130 Kan. 205, 285 P. 606, 72 A.L.R. 425; Kruse v. Kruse, supra; White v....