Kennedy v. Carman

• Decision Date: 22 September 1971
• Docket Number: No. 25398,25398
• Citation: 471 S.W.2d 275
• Parties: Stella L. Carman KENNEDY, Plaintiff-Appellant, v. Leonard E. CARMAN, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 275

471 S.W.2d 275

Stella L. Carman KENNEDY, Plaintiff-Appellant, v. Leonard E. CARMAN, Defendant-Respondent.

No. 25398.

Kansas City Court of Appeals, Missouri.

Sept. 22, 1971.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Sept. 23, 1971.

Dennis G. Muller, Muller & Muller, Kansas City, for plaintiff-appellant.

None, for defendant-respondent.

CROSS, Judge.

Plaintiff and defendant are, respectively, the mother and father of Joseph Lee Garman, a male child born to them in wedlock on February 22, 1962. After a prolonged separation their marriage was dissolved on September 10, 1968, by a decree of divorce entered in the Superior Court of Creek County, Oklahoma. That judgment awarded the boy's custody to defendant, his father, and gave plaintiff, (his mother), certain visitation privileges. Thereafter plaintiff took the child to Missouri for visitation, refused to return him to his father in Oklahoma, and filed this suit as a proceeding in equity, seeking a Missouri court's award of the child's custody to herself instead of to his father. In her petition she claims entitlement to that relief on allegations that there were changed conditions since the original decree such that it would be for the best interest and welfare of the child that his custody be awarded to her, the mother. She further charges that defendant is not a fit person to have the child's full time custody.

At the time plaintiff filed this action, she was domiciled in Missouri. Defendant, still domiciled in Oklahoma, was notified of the suit by 'Summons Upon Service by Mail'. However, he entered personal appearance and filed answer generally traversing plaintiff's petition. Additionally he filed a cross-petition (characterized by plaintiff in her brief as a 'cross petition in habeas corpus') seeking restoration of the boy's custody to himself. In that pleading he alleged that plaintiff was unlawfully restraining and withholding the boy from him in violation of the terms of the Oklahoma decree, which had finally determined the custody question in his favor, and prayed that the court forthwith restore to him the child's 'physical custody, control and care'.

Upon trial, the court gave full hearing on the petition and cross-petition. A transcript of the Oklahoma divorce proceedings introduced in evidence shows that defendant father (who filed that suit as plaintiff) and the child were domiciled in Oklahoma, that the mother was personally served with summons in Oklahoma, and that both parties appeared at the trial in person and by counsel and fully contested the issues. At the conclusion of the divorce trial the court stated orally: 'I don't think the child is going to be injured, by going with the mother or going with the father or staying there. * * * But I am going to rule that the child will stay with the father and that at Christmastime, if the mother wants this child, she should have him for a week or so, and whatever time in the summer she wants him, and we will let the child stay with the father during the school year. * * * Thanksgiving or Christmas and in the summertime, if she wishes to have him, that is up to her * * * it is obvious to me the child is being taken care of now and I am sure if it was the other way and during the summer whenever she had the child, it will be well taken care of.' The divorce decree recited as a preliminary finding that 'the parties hereto have been separated for over three years, and that the parties hereto are incompatible and their marriage relationship heretofore existing has been completely destroyed with no possibility of reconciliation and that both parties are equally at fault and each is entitled to a divorce from the other.' Accordingly, each of the parties was granted 'an absolute and final divorce from the other.' The custody provision of the divorce decree is as follows: 'IT IS FURTHER ORDERED by the Court, that the plaintiff, (defendant here) be awarded the absolute and exclusive care and custody of the minor children born to this marriage, Joseph Lee Carman, and that the defendant (plaintiff here) be awarded the right of reasonable visitation with said minor child. Defendant is further awarded the temporary custody of said minor child during the summer months and on holidays; the period of temporary custody to be agreed upon between the parties hereto.'

A considerable portion of the evidence heard in the present case related to the conduct of the parties prior to rendition of the divorce decree. Such evidence was material only to the merits of the action for divorce and will not be considered in this action, since our concern is only with conditions and circumstances arising since the original decree.

Plaintiff testified (in this case) that at the time the Oklahoma divorce was granted she 'was living in Indiana'. She had gone to Oklahoma to appear for the divorce case hearing and stayed at a motel in Tulsa thirteen days before the decree was rendered. Subsequent to the decree of divorce, she returned to Indiana where she stayed two weeks. Thereafter on September 30th, 1968, she moved to and became employed in Tulsa, Oklahoma. On December 13, 1968, she left Oklahoma and returned to Indiana to care for her ill mother. Prior to that time she had secured visitation with her son several times. On January 1, 1969, plaintiff moved to Kansas City, Missouri. She married William L. Kennedy, her present husband, on March 14, 1969, and at the time of the trial was living with him at a Kansas City address. Defendant also remarried on March 14, 1969. On May 17th, 1969, at the end of Joseph's school year in Oklahoma, defendant surrendered temporary custody of the boy to plaintiff for summer visitation at her home in Kansas City in accordance with provisions of the divorce decree. Defendant testified that plaintiff agreed to have Joseph back by the 17th of July so that the boy might be with his father whose vacation began on that date. Plaintiff denied that she made such promise, but admitted it was her understanding that she was going to return the child at the end of the summer 'obedient to the decree'. That 'understanding' was dishonored by her failure and refusal to return the boy in defiance of the subsisting decree and her commencement of this suit on August 8, 1969.

Both parties adduced evidence to the effect that they were fit and suitable persons to have Joseph's custody and were able to properly provide and care for his needs and nurture. Neither party produced any proof that the other was not a suitable custodian. As to any 'changed circumstances' on which plaintiff bottomed her petition, the evidence discloses none of substance other than the remarriage of both parties. At the conclusion of the evidence the trial court made oral remarks as follows:

'Gentlemen, I'm constrained to hold that full faith and credit should be given to the Oklahoma decree. I can't see anything else. This child, in spite of what you say is domiciled in Oklahoma. I think he is here under the very--in accordance with that decree in Oklahoma. * * *

'I have considered this very carefully and I don't even want to express my opinion about the relative merits of the homes which seems to me, the evidence is clear, they are both--neither is unfit to have the child but I think if there is to be a change in custody, it should be in the Oklahoma Court, which originally granted the decree and awarded the custody. * * *

'The child is remanded to the custody of the petition under the Writ of Habeas Corpus, to Mr. Leonard E. Carman.'

Written findings of fact by the trial court include the following:

'5. Plaintiff herein and defendant herein both appear to the court to be fit persons to have custody of Joseph Lee Carman, their minor child, and their circumstances and conditions of life as such custodians appear to the Court to be approximately equal;

6. The health and welfare of said minor child would not be jeopardized or imparied were his custody remanded to defendant herein, Leonard E. Carman, * * *'

The trial court entered conclusions of law as follows:

'1. The aforementioned Decree of Divorce dated September 10, 1968, made and entered by the Superior Court of Creek County, State of Oklahoma, Bristow Division, is a final and valid judgment, decree and order made by a court of competent jurisdiction and on September 10, 1968, said Court had jurisdiction over the subject matter and the parties involved in the aforesaid suit there pending, Leonard E. Carman, plaintiff vs. Stella L. Carman, defendant, cause No. 3170--D;

2. Said decree of September 10, 1968, is entitled to full faith and credit in this Court and under the facts and the applicable law, this court is precluded from awarding custody otherwise than in accordance with said decree awarding the exclusive care and custody of Joseph Lee Carman to defendant.

3. The court does not have jurisdiction of plaintiff's claim to change custody and defendant is entitled to the relief prayed for in his counter-claim.'

The judgment entered in this cause reads as follows:

'THEREFORE, it is now by the Court ORDERED, ADJUDGED AND DECREED that custody of Joseph Lee Garman should be forthwith remanded to his father, Leonard E. Carman, and plaintiff herein is ordered forthwith to surrender and to return said child to the custody, care and control of the defendant herein, Leonard E. Carman, and plaintiff's petition is dismissed for want of jurisdiction.'

Plaintiff utilizes two points of her brief to contend that the trial court erred in its disclaimer of jurisdiction. In her first point it is argued that notwithstanding the full faith and credit provision of the federal constitution, the Oklahoma decree was conclusive only as to circumstances and conditions existing at the time of its rendition, and that the Missouri court, upon a showing of changed conditions arising thereafter, which in the interest of the child's welfare would justify a different award, was not...