Kruse v. Kruse

• Citation: 96 P.2d 849,150 Kan. 946
• Decision Date: 09 December 1939
• Docket Number: 34658.
• Parties: KRUSE v. KRUSE et al.
• Court: United States State Supreme Court of Kansas

96 P.2d 849

150 Kan. 946

KRUSE v. KRUSE et al.

No. 34658.

Supreme Court of Kansas

December 9, 1939

Rehearing Denied Feb. 6, 1940.

Syllabus by the Court.

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 the 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.

A Missouri's court's judgment awarding custody of child of divorced parents, which was void for want of jurisdiction was not required to be recognized by Supreme Court of Kansas under the full faith and credit clause of the Federal Constitution. U.S.C.A. Const. art. 4, § 1.

In January, 1928, Loren M. Kruse brought an action for divorce against Bertha E. Kruse in the state of Missouri where the parties were domiciled. A decree was granted to plaintiff and the custody of the minor child was awarded alternately to each parent for six months of each year. Shortly after the divorce the mother removed to Kansas taking the child with her. In September, 1928, the court modified the original order and gave the custody of the child to the mother. The child has lived in Kansas with her mother since 1928. In September, 1939, the Missouri court entered a decree giving the custody of the child to the father domiciled in Missouri. In the proceedings in the Missouri court the mother filed a motion for a continuance. In a proceeding in habeas corpus brought by the father for the custody of the child, held, (1) the domicile of the minor child is in Kansas and this state has jurisdiction over her custody, (2) whatever jurisdiction the Missouri court may have acquired over the mother upon her filing the motion for continuance in the pleadings to modify the decree in 1939, that court did not acquire jurisdiction over the child domiciled in this state, and (3) this court is not bound by the full faith and credit clause of the Federal Constitution, U.S.C.A.Const. art. 4,§ 1, to recognize the judgment of the Missouri court as to the custody of the child.

C. E Pile, of Parsons, for petitioner.

Charles Stephens and Jerome Harman, both of Columbus, for respondents.

ALLEN Justice.

This is an original proceeding in habeas corpus to obtain the custody of a minor child.

On January 10, 1928, the circuit court of Henry county Missouri, granted a decree of divorce in favor of the petitioner, Loren M. Kruse, against the respondent, Bertha E Kruse. As a part of the divorce proceedings the Missouri court awarded the custody of the child, Lorene Kruse, alternately to each parent for six months of each year. On September 13, 1928, the court modified the original order and gave the custody of the child to the respondent Bertha E. Kruse. Right of visitation was given the petitioner. Shortly after the divorce decree, the mother Bertha E. Kruse brought the child Lorene to Cherokee county, Kansas. Lorene is now thirteen years of age, and lives in the home of her grandmother, Nancy J. Gallagher, in that county. It does not appear that the child has been in Missouri since she was brought to this state by her mother in 1928.

On September 15, 1939, the circuit court of Henry county, Missouri, entered a decree giving the custody and control of the child to the father Loren Kruse. The decree recites that the defendant Bertha E. Kruse was "duly served with process issued out of this court," and that defendant by her attorneys filed an application for a continuance in such proceeding.

Petitioner relies on the decree of September 15, 1939, and asserts that under the full faith and credit clause of the Federal Constitution, Art. IV, Sec. 1, U.S.C.A., we are bound to recognize and enforce the decree of the Missouri court.

Did the Missouri court have jurisdiction to award the custody of the child to the father by the decree of September 15, 1939? In Beale, Conflict of Laws, Vol. 2, Section 144.3, it is said:

"Since custody of a child by one parent carries with it domicil and a domestic status, jurisdiction to give the child to one parent or the other depends in principle on the domicil of the child; and a state which is the temporary residence of the child, not the domicil, cannot confer the right to custody. A fortiori a decree for custody rendered in a state where the child is neither resident nor domiciled is void for lack of jurisdiction."

"*** If after a divorce the party to whom custody was given removes with the child to another state, this would seem to give the second state jurisdiction over the custody, and put an end to the jurisdiction of the first state; for after the divorce each party may change domicil at will, and the child's domicil changes with that of the parent in whose custody he has been placed. ***"

In Section 147.1 of the same work, it is said:

"When the custody of a child has been awarded to one parent by a court having jurisdiction so to do, the right of this parent will be recognized by other states.

"The facts upon which the award was based have become res judicata, and cannot be reexamined in the second state. But this estoppel extends only to conditions which existed at the time of the original decree; the second court may examine any facts which have occurred since the original decree which throw light upon the fitness of the parents to have custody of the child."

The question of jurisdiction in this class of cases received careful consideration in Wear v. Wear, 130 Kan. 205, 285 P. 606, 72 A.L.R. 425. In that case the wife sued the husband for divorce in Oklahoma. The decree was in favor of the plaintiff and she was given the custody of the minor child. The child was in Kansas on a visit at the time the decree was rendered. The wife brought habeas corpus for custody of the child. In affirming the order of the district court awarding the custody of the child to the mother, it was said: "*** The trial court correctly held that the contest, as presented to the court, was one between the father and the mother, and that as between them the matters adjudicated by the Oklahoma court in the divorce case were res judicata as to matters determined by the decree in that case, and as of the time it was rendered. The trial court specifically offered to hear evidence as to changed conditions which would authorize or justify a different order with respect to the custody of the child, but, as shown by the entry in the journal, counsel for respondents stated in open court they had no evidence of that character to offer." 130 Kan. page 225, 285 P. page 616, 72 A.L.R. 425.

In "The Progress of the Law" by Beale, 34 Harv.L.Rev. 50 (1920), it was said:

"In Groves v. Barto, 109 Wash. 112, 186 P. 300, upon a divorce in Colorado the custody of the child had been awarded to the mother. The mother then changed her domicil to Washington, the father assenting. Several months later the father

...