Leitner v. Lonabaugh

• Decision Date: 09 June 1965
• Docket Number: No. 3307,3307
• Citation: 402 P.2d 713
• Parties: George W. LEITNER, Appellant (Plaintiff below), v. A. W. LONABAUGH and E. E. Lonabaugh, Appellees (Defendants below).
• Court: Wyoming Supreme Court

Page 713

402 P.2d 713

George W. LEITNER, Appellant (Plaintiff below), v. A. W. LONABAUGH and E. E. Lonabaugh, Appellees (Defendants below).

No. 3307.

Supreme Court of Wyoming.

June 9, 1965.

Bruce P. Badley, Sheridan, for appellant.

E. E. Lonabaugh, of Lonabaugh & Lonabaugh, Sheridan, for appellees.

Before PARKER, C. J., and HARNSBERGER, GRAY and McINTYRE, JJ.

Mr. Justice GRAY delivered the opinion of the court.

This is an appeal by plaintiff George W. Leitner from a judgment denying him recovery, as the obligee, on a bond signed by Emily Louise Ewing (formerly the spouse of plaintiff) as principal and obligor, and which defendants A. W. Lonabaugh, her father, and E. E. Lonabaugh, her brother, signed as sureties. To avoid confusion we hereafter refer to plaintiff as 'Leitner' and to his former spouse as 'Mrs. Ewing.'

The record discloses that Leitner and Mrs. Ewing were divorced on August 22, 1960, by a decree entered in the District Court for Sheridan County, Wyoming. ¹ The decree, inter alia, provided that the mother, Mrs. Ewing, was to have custody of their children, Diana, age five, and George, Jr., age four, with rights of visitation in Leitner at reasonable times. It also provided that the mother 'shall not remove them from the jurisdiction of the District Court in and for Sheridan County, Wyoming, except with the prior written permission of the Defendant [Leitner] or consent of this Court.'

By way of support for the children the decree provided that Leitner 'pay unto the Plaintiff [Mrs. Ewing] each and every month, commencing with the month of August, 1960, and on the first day of each month thereafter, the sum of $50.00 for each child until such children become 21 years of age or self-supporting, whichever shall first occur.' To guarantee payment thereof and of other financial obligations imposed upon Leitner by the decree, the court impressed a lien upon his share of anticipated delayed payments from the sale of a ranch in Powder River County, Montana.

In the summer of 1961, the mother remarried. Thereafter Leitner filed with the court an application for modification of the custody provisions of the decree alleging, among other things, that Mrs. Ewing was proposing to make her home in Hawaii with her then husband and was threatening to take the children with her. Mrs. Ewing, in response to Leitner's application, admitted that she intended to make her future home in Hawaii and countered with an application for an order of the court granting to her, among other things, the privilege of taking the children with her.

Following this the contesting parties, on August 23, 1961, filed a stipulation with the court settling their differences and agreeing that the court might enter an order modifying the original decree in keeping with the stipulation. The material portions of the stipulation provided that Mrs. Ewing could remove the children from Sheridan, Wyoming, to Hawaii, providing that Leitner be given partial custody for a period of ten weeks each year commencing 'one (1) week' after the close of each school year. The school year involved in this litigation ended on June 7, 1963.

The right of partial custody in Leitner was to be subject to the conditions:

'(a) That the Defendant is current in his support payments for said children or either of them in accordance with the original Decree herein. ²

'(b) That the Defendant pay the transportation costs to and from the residence of the Plaintiff for said children each year during said partial custody of Defendant.

'(c) That the Defendant have a proper home or place to keep said children during said periods of partial custody and, at all times of his absence during said periods, have a proper person to watch over and care for said children.'

Any permission granted to Mrs. Ewing to take the children to Hawaii was to be subject to the condition:

'(a) That the Plaintiff file with the Clerk of Court a bond in the amount of $500.00 with good and sufficient sureties to be approved by said Court conditioned that Defendant shall be paid said amount if the Plaintiff fails to deliver said children to Defendant in accordance with said modification.'

On the day the stipulation was filed it was presented to Judge Layman and Judge Layman, without objection from either Leitner or Mrs. Ewing, proceeded to hear the matter and at the conclusion signed a decree amending the custody provisions of the original decree in the manner agreed upon by the parties and also approved the bond furnished by Mrs. Ewing. The bond in question, signed as stated above, was in the sum of $500 and contained the following:

'The condition of this Bond is that if the bond principal shall and in all things deliver up the minor children of the parties to the obligee in accordance with the Modification of the Divorce Decree entered herein by the District Court of Sheridan County, Wyoming, on the 23rd day of August, 1961, in the above entitled matter and each year during the pendency of said Modification and the minority of said children then this obligation is void; otherwise it shall be and remain in full force and virtue.'

Subsequent to the signing of the modification decree Mrs. Ewing changed her residence from Sheridan County, Wyoming, to the State of Hawaii, taking the children with her. Unfortunately the amicable settlement of the parents' differences with respect to the children failed to materialize as envisioned. We shall not attempt to recount all of the difficulties. However, a critical stage was reached in the summer of 1962. On August 18, 1962, near the close of the period of partial custody, Leitner, rather than returning the children to Hawaii, filed an application to modify the modification decree. By the application Leitner sought to obtain custody of the children. Pursuant to such application Judge Guthrie entered a show cause order directed to Mrs. Ewing. In response Mrs. Ewing moved that the application be dismissed for Leitner's failure to abide by the custody provisions of the original and amended decrees; that he be held in contempt for such failure; and for other relief not here important. On August 28, 1962, Judge Guthrie entered an order holding Leitner to be in contempt of court on the grounds stated by Mrs. Ewing, but permitting him to purge the contempt by prompt return of the children to Hawaii, which was done; requiring him to advance certain expenses to Mrs. Ewing pending hearing of the application; and postponing the hearing until further order of the court.

There were no further developments in the case until April 1, 1963, when Judge Guthrie entered an order reassigning the case to Judge John P. Ilsley, the successor of Judge Layman as the presiding judge of the District Court of Sheridan County, Wyoming. Thereafter, on May 8, 1963, it appears that the question of the validity of the modification decree signed by Judge Layman was brought to the attention of Judge Ilsley in a hearing upon a motion relating to the proceeding to modify said decree. Thereupon Judge Ilsley, after reciting that both parties had agreed and consented that they would be bound by the terms of the stipulation entered into in 1961 and the modification decree entered thereon, ordered that such stipulation be approved and confirmed and that Leitner's application directed at the modification decree would be treated as an application to modify the original decree. However, two days later Leitner moved the court for an order dismissing said application without prejudice, and such an order was entered on June 4, 1963. In this same order special provision was made for the boy, George, Jr. It appears that the boy had been undergoing medical observation which Leitner questioned, and it was ordered that Mrs. Ewing place the boy in Leitner's custody prior to June 10, 1963, for the purpose of having the boy examined by a physician of his choosing.

In the meantime Leitner had arranged for passage of the children from Hawaii to San Francisco, California, on United Air Lines. They were scheduled to leave Hawaii on the morning of June 8, 1963, and Mrs. Ewing was so informed by United Air Lines on June 4, 1963. In this Leitner is shown to have been somewhat premature in asserting his rights to the custody of Diana, as the school year did not end in Hawaii until Juen 7, 1963. However, Mrs. Ewing made no objection to him on that score. Rather the record reveals that on the day she was informed of the arrangements she called her brother--E. E. Lonabaugh, one of her attorneys--and discussed the matter with him. According to her testimony, the principal objection seemed to be that Leitner was delinquent in his support payment for the first half of June, 1963, in the sum of $50, and medical bills for the children in the sum of $372.87. She so informed her brother and said he advised that as long as such amounts were not paid she 'did not legally need to release the children.' However, the testimony of the brother is that he told her to send the children.

Apparently not having been advised otherwise, Leitner left Sheridan for San Francisco early on the morning of June 7, 1963, to meet his children, only to find upon arrival that they were not there. An unsuccessful effort was made to call Mrs Ewing. Upon returning to Sheridan, Leitner promptly wrote to Mrs. Ewing, imploring her to send the children and saying, 'I have kept my agreements up to date and hope you will do the same. I would like an answer as soon as possible as it is now almost the middle of June already.' Mrs. Ewing did not answer and the record does not show that Leitner was then informed as to Mrs. Ewing's reasons for refusing to send the children.

Then in the latter part of July 1963 Leitner commenced a habeas corpus proceeding in the Circuit Court of the First Circuit, State of Hawaii, for the purpose of enforcing his rights of custody to the children.

At the beginning of the hearing in the habeas corpus matter the trial court...