Leach v. Leach, 41241
| Decision Date | 07 March 1959 |
| Docket Number | No. 41241,41241 |
| Citation | 184 Kan. 335,336 P.2d 425 |
| Parties | Beverly LEACH, Appellee, v. James C. LEACH, Appellant. |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. The question of a court's jurisdiction over the subject matter can be raised by the parties or by the court on its own motion at any stage of a proceeding.
2. Where in a divorce proceeding, custody of a minor child is given to the father and later the father leaves the state with his child and establishes a domicile in another state, the domicile of the minor is the domicile of the father, and the court which granted the divorce and made the custody order no longer retains jurisdiction to modify or change the custody of the child (Kruse v. Kruse, 150 Kan. 946, 96 P.2d 849).
Lee R. Meador, Wichita, argued the cause, and Otto J. Koerner and Thomas A. Bush, Wichita, were with him on the brief, for appellant.
Pat Warnick, Wichita, argued the cause, and Roy L. Rogers and Alan B. Phares, Wichita, were with him on the brief, for appellee.
This is another installment in the sad story of strife between the mother and father of a little six year old boy. The parents are contending as to which of them shall have custody of their son.
This case began as a suit for divorce between the parents. The father was granted the divorce and custody of the baby boy. While the mother was satisfied with this arrangement for the child at that time, she later changed her mind, and there now have been seven applications to change the custody of the child. This is the third appeal from the orders of the district court of Sedgwick county in this running battle. The former cases in this court are: Leach v. Leach, 179 Kan. 557, 296 P.2d 1078, and Leach v. Leach, 180 Kan. 545, 306 P.2d 193.
The past history of the case need not be recounted here since it can be found in our former opinions. It would appear that the seven applications for change of custody of the child have been heard in several different divisions of the district court of Sedgwick county. This court is firmly of the opinion that it would be better to provide in the rules of the court that questions of child custody in any certain case should always be taken before the judge first handling the case. Of course, where the judge has left the bench, there must be a change.
It will be noted from the opinion in the second appeal supra that at the time of that appeal the father and child were domiciled in Omaha, Nebraska. The record in this appeal shows that in June, 1957, the father, who at that time was a government meat inspector, was transferred to Smithfield, Virginia. He moved his family consisting of his second wife and children, including the boy in question, to a home in Virginia. We are advised that the family did not like the climate in Virginia, the son had asthma, and by February, 1958, they had moved to Albuquerque, New Mexico where the father had obtained employment.
All of these facts eventually became known to the mother who complains that she was not notified concerning the family and its migrations. The mother at this time, having returned from Hawaii, lived in Rhode Island with her second husband and her children of her second marriage. Thereupon, the mother filed the seventh motion to change the custody of the son from the father to herself in the district court of Sedgwick county. The father appeared by counsel, but did not appear in person or bring his son before the court. In fact, it appears that neither the father nor the son has appeared in the Sedgwick county district court since they moved to Nebraska.
On the hearing of the motion the trial judge expressed some displeasure because the father had not come from New Mexico with the son to appear before the court. The court also expressed some feeling that the father was attempting to prevent the mother from having any right of visitation or partial custody of the boy as had been decreed after the sixth motion for change of custody. Thereupon, the court issued an order changing the custody of the son from the father to the mother.
In the present appeal the father seeks to reverse the last mentioned order. In this court on this appeal, for the first time, we are directed to a question of the jurisdiction of the courts of Kansas to change the custody of this boy evidently domiciled in New Mexico.
While this question has not been presented to the district court, it is in fact a question as to the jurisdiction of the subject of the action, and it can concededly be raised by the parties or this court on its own motion at any time (Shively v. Burr, 157 Kan. 336, 139 P.2d 401).
It would appear from the clear holding of this court in the case of Kruse v. Kruse, 150 Kan. 946, 96 P.2d 849, that the Kansas court had no jurisdiction to entertain the motion to change custody upon which it made the order from which this appeal is taken.
The facts in the Kruse case are very similar to those in the case at bar. In the former case, Mrs. Kruse had been divorced from her husband in a circuit court of Missouri. The Missouri court granted custody of a daughter to Mrs. Kruse, who later moved to Kansas with her child and established a domicile here.
Some years later, the father applied to the Missouri court for an order changing custody of the daughter. The mother appeared only by counsel in the Missouri court. That court after a hearing changed the custody of the child domiciled in Kansas to the Missouri father.
When the father came to Kansas and attempted to assert the Missouri order changing custody of the child domiciled in Kansas in a habeas corpus proceeding, this court held that the Missouri court had no jurisdiction to make the order for change of custody.
The comparison between the Kruse case and this case can be carried further. We are advised in the briefs in this case that Mrs. Leach after obtaining the order now appealed from, journeyed to New Mexico and there instituted a habeas corpus proceeding to obtain possession and physical custody of her son. We are advised without contradiction that the New Mexico court held the order of the Kansas district court changing custody to be void for want of jurisdiction and not entitled to full faith and credit.
To turn back to the opinion of this court in the Kruse case, this court said in that case:
'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, ...
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...1013 (1960); White v. White, 160 Kan. 32, 159 P.2d 461 (1945); Moloney v. Moloney, 163 Kan. 597, 185 P.2d 167 (1947); Leach v. Leach, 184 Kan. 335, 336 P.2d 425 (1959). The appellant contends the trial court erred in overruling her motion for judgment on the pleading at the commencement of ......
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