Lyerla v. Lyerla

• Decision Date: 10 July 1965
• Docket Number: No. 44144,44144
• Citation: 403 P.2d 989,195 Kan. 259
• Parties: Peggy Sue LYERLA, now Peggy Sue Ramsay, Appellant, v. Robert E. LYERLA, Appellee.
• Court: Kansas Supreme Court

Page 989

403 P.2d 989

195 Kan. 259

Peggy Sue LYERLA, now Peggy Sue Ramsay, Appellant, v. Robert E. LYERLA, Appellee.

No. 44144.

Supreme Court of Kansas.

July 10, 1965.

Syllabus by the Court

1. Under the provisions of K.S.A. 60-1610, a court which, in an action for divorce or separate maintenance makes an order for the care and custody of any minor child, retains jurisdiction to change or modify such order when the welfare of the child so requires, if (1) the child is then physically present in the county, or (2) is presently domiciled in this state, or (3) was comiciled in this state when the court previously exercised jurisdiction over its custody.

2. An action brought in this state is not subject to abatement became of the pendency, in another state, of an action seeking the same relief.

3. An order awarding custody of a minor child is res judicata only as to matters as they existed when the order was made, and does not bar later inquiry into the issue of custody where circumstances have changed.

4. The paramount issue for determination on a motion to change custody between parents, where neither parent has been found unfit, is what best will serve and advance the welfare of the child involved.

5. The record is examined in an action to change the custody of minor child, and it is held that the trial court did not err in finding that conditions had changed and in transferring custody from the mother to the father.

Paul Armstrong, Columbus, argued the cause, and was on the brief for appellant.

Carl Pingry, Pittsburg, argued the cause, and was on the brief for appellee.

FONTRON, Justice.

This is an appeal from an order changing custody of Robert Lynn Lyerla, often called Bobby herein, from his mother to his father. A chronicle of the dreary events leading up to the present proceedings is essential to an understanding of this case, which, it may be said, mirrors the tragedy which has befallen a ten-year-old boy from the disruption of his home.

On December 7, 1959, the appellant, Peggy Sue Lyerla, secured a divorce from Robert E. Lyerla, the appellee. For convenience, they will generally be referred to hereafter as Peggy and Robert. Custody and control of Bobby, then four years old, and his sister, Linda Sue, aged six, was awarded to their mother, while their father was given custody two months each summer and was also accorded certain weekend visitation privileges. Within six months from the divorce, Peggy had married Bob Ramsay, and on June 6, 1960, Robert married Bob's wife, Mollie. This dubious reshuffling of the Lyerla and Ramsay families has visited unhappy consequences on the youngsters affected.

Warfare broke out over the Lyerla children long before the divorce was a year old. In September 1960, Peggy was adjudged guilty of contempt of court for refusing Robert his visitation privileges. The following December, Robert was granted visitation rights during the Christmas holidays. Not long thereafter, Peegy sought the court's permission to remove the children to Las Vegas, Nevada. After a hearing, in which Robert countered with a motion to change custody, the trial court, on February 17, 1961, granted Peggy's request and ordered her to give bond to guarantee compliance compliance with its orders. On December 19, 1961, the original custody order was modified to permit Robert to visit his children in Las Vegas four days each quarter, upon giving notice.

The scene then shifts to Nevada where the embattled litigants continued their conflict in the Eighth Judicial District Court of that state.

On June 18, 1962, Robert brought habeas corpus proceedings in Las Vegas to obtain the children for that summer. An order was entered as of June 20 affirming the custodial rights previously established by the Kansas court and requiring both parties to post compliance bonds. In Late October 1962, Robert filed contempt proceedings in order to bisit his children for a weekend and for the additional purpose of compelling Peggy to furnish the compliance bond ordered by the court.

On June 27, 1963, the Nevada court entered an order, apparently based on a motion previously filed by Peggy, which confirmed existing custody rights but changed slightly the dates for the 1963 summer visit and, in addition, raised support payments.

A few months after the above order was made, Robert learned that Bobby had been sent to the Elsinore Naval and Military School at Elsinore, California, for the 1963-64 school year. Alarmed at this decelopment, Robert resorted once again to the Nevada court and, in December 1963, filed a motion to change Bobby's custody. This motion, together with another motion filed by Peggy for an increase of child support, was presented on January 3, 1964, and resulted in an order dated January 8, 1964, continuing the hearing of both motions to 'an appropriate date' after Bobby finished his school year at Elsinore.

Thus matters stood until July 2, 1964, when Robert, who over Peggy's protest had already brought his son to Kansas for the two summer months of that year, filed the present motion in the Crawford County District Court seeking a change of Bobby's custody. On July 28, 1964, after an extended hearing, the trial court entered its order changing Bobby's custody to his father, subject to Peggy's right to visit the boy at his father's home at reasonable times, and confirming the mother's custody of Linda Sue. From this order and from an earlier order of the court refusing to dismiss Robert's motion, Peggy has taken this appeal.

In the meantime, and on July 6, 1964, the Nevada court, apparently ruling on a made an order that Bobby remain with his visit with his father for that summer so that the boy might attend a summer camp, made an order that Boddy remain with his father for the summer vacation and be returned to his mother by August 15, 1964. Further reference to this action will be made later in this opinion.

Ten separate grounds of error are specified by the appellant in her statement of points, but we believe her contentions may be grouped generally in four main categories, which we will proceed to discuss in their order.

First, it is argued that the Carwford County District Court lacked jurisdiction to entertain Robert's motion for change of custody, and several Kansas cases are cited as authority for this position. We must cencede that appellant correctly interprets our former decisions as holding, in effect, that where the custody of a child has been awarded to a parent who thereafter leaves the state and establishes a domicile elsewhere, the domicile of the child is that of the parent and the court which made the original custody order no longer retains jurisdiction to modify or to change the same. (Leach v. Leach, 184 Kan. 335, 336 P.2d 425; Hannon v. Hannon, 186 Kan . 231, 350 P.2d 26; Niccum v. Lawrence, 186Kan. 223, P.2d 133.)

However, since those cases were decided, the Kansas legislature has adopted the Kansas Code of Civil Procedure. K.S.A. 60-1610 now provides, in pretinent part, as follows:

'(a) Care of minor children. The court shall make provisions for the custody, support and education of the minor children, and may modify or change any order in connection therewith at any time, and shall alwasy have jurisdiction to make any such order to advance the welfare of a minor child if (i) the child is physically present in the county, or (ii) domicile of the child is in the state, or (iii) the court has previously exercised jurisdiction to determine the custody or care of a child who was at such time domiciled in the state. * * *'

We believe it is obvious that by enacting 60-1610, the legislature intended to change the rule enunciated in the foregoing cases. In his work, Kansas Code of Civil Procedure, annotated, Judge Gard, in discussing the meaning and effect of this statute, on page 730, has this to say:

'(3) Heretofore the jurisdiction over children involved in a marital controversy has depended on the domicile of the children at the time the order is made. See Niccum v. Lawrence, 186 K 223, 350 P.2d 133; Hannon v. Hannon, 186 K 231, 350 P.2d 26; Leach v. Leach, 184 K 335, 336 P.2d 425. The rule of those cases is changed by this subsecution. Now the physical presence of the child is all that is necessary. Domicile continues to be a jurisdictional fact but only one alternative of several. If the Kansas court has previously exercised jurisdiction to determine the custody of a child who at the time was domiciled in Kansas, the court does not now lose its jurisdiction by the subsequent change of the child's domicile, and physical presence at the time of the later hearing is not essential. If the original jurisdiction over the child attached simply because of the presence of the child in the county, and not because of domicile, the court does not have continuing jurisdiction.

'The former rule of the Kansas case law that it was domicle which determined the court's jurisdiction has now been supplanted by statute law which recognizes all three bases for jurisdiction as variously found in the several states, some having one and some another. The theory is that any justification for jurisdiction is sound which will provide a local forum when the welfare of children is at stake. No effort is made to solve the problems of conflicting jurisdiction which may arise.'

In the case now before us, not only was Bobby physically present in Crawford County when his father's motion was filed and heard, but the district court had previously exercised jurisdiction over his custody when the divorce was granted, at which time Bobby's domicile was in Kansas. Consequently, under the express terms of the state, the trial court has jurisdiction on two grounds, either one of this would suffice.

The appellant next maintains that Robert's motion for change of custody should have been dismissed because similar proceedings were then pending in Nevada. Thie claim is made because no final action...