Magers v. Magers

• Decision Date: 02 February 1982
• Docket Number: No. 1,No. 57163,57163,1
• Citation: 645 P.2d 1039
• Parties: 1982 OK CIV APP 7 James W. MAGERS, Appellant, v. Janice D. MAGERS, Appellee
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 1039

645 P.2d 1039

1982 OK CIV APP 7

James W. MAGERS, Appellant, v. Janice D. MAGERS, Appellee.

No. 57163.

Court of Appeals of Oklahoma, Division No. 1.

Feb. 2, 1982.

Rehearing Denied March 23, 1982.

Certiorari Denied May 18, 1982.

Released for Publication by Order of Court of Appeals May 27, 1982.

Appeal from the District Court of Osage County; Mermon H. Potter, judge.

AFFIRMED.

Shockley T. Shoemake, Pawhuska, for appellant.

Kelly & Gambill by Bruce W. Gambill, Pawhuska, for appellee.

REYNOLDS, Judge:

The District Court of Osage County acquired emergency jurisdiction in this case for the protection of the son and daughter of James Mager and Janice Mager, now Durham.

The son visited his father in Oklahoma in July, 1980 and revealed information which, if believed, could indicate that the child had been physically and sexually abused by Janice's live-in boyfriend. Janice, a Texas resident, received notice of the assumption of jurisdiction by the Oklahoma court when she was served with copies of James' petition and a temporary custody order granted him.

James and Janice had been divorced in Wichita County, Texas in June, 1980. Janice and her boyfriend married in late August, two days after she received notice of the Oklahoma proceedings. She entered her appearance in the Oklahoma court in early September. The very next day she appeared before a Texas grand jury and caused a felony warrant to be issued for James' arrest by alleging that he had wrongfully refused to surrender the children to her. Further, in mid-November, Janice filed in Texas for a writ of habeas corpus, for contempt, for termination of James' parental rights or the limitation of his visitation rights, and for attorney's fees.

Meanwhile, in late November, the Oklahoma court held a partial hearing on the abuse allegations. The Texas court held a hearing on the contempt charges against James in early December. James, still subject to arrest on the grand jury warrant, prudently declined to travel to Texas for the hearing. The Texas court adjudged James to be in contempt and sentenced him, in abstentia, to six months in the county jail. The Oklahoma court wrote to the Texas court in late January and formally advised it of the pending Oklahoma proceedings. The Texas court never responded. The Oklahoma court resumed its hearing on the abuse allegations in late February, and entered a statement of facts in late June. The Oklahoma court determined that the overwhelming majority of the witnesses who could testify as to the alleged abuse were in Texas. Thus, Texas was the most convenient forum for this action.

James was granted temporary custody of the children, given ten days to file a statement of intent to petition the Texas court, and granted twenty days following the ten day period to actually file a petition. If James failed to file in Texas, custody of the children was to revert to Janice.

During the pendency of this appeal, Janice petitioned the Texas court to stay the warrants for James' arrest. The District Court of Wichita County, Texas, stayed the grand jury and contempt warrants in October, 1981, and James was then free to return to Texas.

James appealed from the findings of the Oklahoma court, alleging error in the referring of the case to Texas, and the failure of the court to make a ruling on the merits.

The Texas court acquired continuing jurisdiction over the children under Texas' statutes (V.T.C.A., Family Code, § 11.05) when it awarded custody of the children to Janice in the June, 1980 divorce.

The Oklahoma court is empowered to assume jurisdiction where an emergency exists and a child may be endangered. 10 O.S.Supp.1980, § 1605(A)(3)(b). Further, the district court has the duty to take evidence on the issue of abuse to determine whether it should assume emergency jurisdiction. Holt v. District Court, etc., 626 P.2d 1336 (Okl.1980).

James alleges that the district court erred in giving retrospective effect to the Uniform Child Custody Jurisdiction Act (UCCJA), 10 O.S.Supp.1980, § 1601, et seq., which became effective October 1, 1980.

The retrospective application of a procedural statute is proper. The Supreme Court of Oklahoma stated in Shelby-Downard Asphalt Co. v. Enyart, 67 Okl. 237, 170 P. 708 (1918):

No one has a vested right in any particular mode of procedure for the enforcement or defense of his rights. Hence the general rule that statutes will be construed to be prospective only does not apply to statutes affecting procedure; but such statutes, unless the contrary intention is clearly expressed or implied, apply to all actions falling within their terms, whether the right of action existed before or accrued after the enactment.

Further, the UCCJA, 10 O.S.Supp., § 1603 states:

The provisions of this act shall apply to all custody proceedings brought within this state, whether as an initial proceeding or modification, and regardless of the absence of jurisdictional dispute. (Emphasis added.)

The UCCJA enumerates the specific instance when a court shall assume jurisdiction. 10 O.S.Supp.1980, § 1605.

After determining that it has jurisdiction, the court must then decide whether to exercise jurisdiction. Smith v. Smith, 40 Or.App. 257, 594 P.2d 1292 (1979). This multi-step approach was specifically adopted by the Supreme Court of Oklahoma in Holt, supra, at 1341. The policy considerations which the court must take into account when deciding whether to exercise jurisdiction are clearly stated in 10 O.S.Supp.1980, § 1609.

The court may decline to exercise its jurisdiction if it finds that it is an inconvenient forum. 10 O.S.Supp.1980, § 1609(A). Further, 10 O.S.Supp.1980, § 1609(E) states:

If the court finds that it is an inconvenient forum and that a court of another state is a more appropriate forum, it may dismiss the proceedings, or it may stay the proceedings upon condition that a custody proceeding be promptly commenced in another named state or upon any other conditions which may be just and proper, including the condition that a moving party stipulate his consent and submission to the jurisdiction of the other forum. (Emphasis added.)

In determining when it is an inconvenient forum, the court may take into account such factors as: whether another state is or was recently the child's home state; whether another...