Marquiss v. Marquiss
| Citation | 837 P.2d 25 |
| Decision Date | 07 July 1992 |
| Docket Number | No. 90-184,90-184 |
| Parties | Janie S. MARQUISS, Appellant (Defendant), v. Gary C. MARQUISS, Appellee (Plaintiff). |
| Court | United States State Supreme Court of Wyoming |
John A. Coppede and Lawrence A. Yonkee, Redle, Yonkee & Toner, Sheridan, for appellant.
Dwight F. Hurich of Preuit, Sowada & Hurich, Gillette, for appellee.
Before THOMAS, CARDINE, URBIGKIT * and GOLDEN, JJ., and KALOKATHIS, District Judge.
This court reviews a complex and highly-charged post-divorce child custody and visitation conflict which provides a general jurisdictional field of inquiry. 1 The dispositive questions are: (1) whether a Wyoming divorce court has jurisdiction to enforce a non-custodial father's visitation rights when the custodial mother and the litigants' children have resided out-of-state for five years; and (2) if so, how?
We affirm the district court's jurisdictional authority to issue a civil contempt citation to enforce the father's visitation rights. We affirm the district court's order requiring delivery of the children to Wyoming for visitation as a proper exercise of discretion under the court's continuing jurisdiction as the divorce decree state. We accept the father's constructive stipulation in his appellate brief that the mother was improperly assessed attorney's fees and, as a result, we reverse that portion of the district court order. Finally, we determine that a provision in the district court order stating that a warrant would be issued for the mother's arrest if she failed to either bring the children to Wyoming or to show cause why she should not be required to do so does not constitute a final order and, consequently, is not subject to present appeal. 2
This case combines the concerns of a divorced husband and wife who cultivate all of the unreasonableness which is too often produced by domestic intranquillity. Janie S. Marquiss (mother) and Gary C. Marquiss (father) were married in Wyoming on August 23, 1973. Two sons, Christopher Scott Marquiss and Merritt Lee Marquiss, were born during the marriage which ended by a 1984 Campbell County, Wyoming divorce decree. The mother, in contesting the father's petition, was awarded custody, while the non-custodial father received explicitly-stated visitation rights providing:
THE COURT DOES FURTHER FIND AND HEREBY ORDERS that both parties are fit and proper persons to have the care, custody and control of the parties['] two minor children. It is, however, hereby decreed that the [mother] shall have the general care, custody and control of the parties['] minor children, subject, however, to reasonable visitation rights in the [father]. Reasonable visitation for the [father] shall include alternate major holidays to coincide with school vacation times, including Easter, Thanksgiving and the Christmas-New Years holiday period. IT IS FURTHER HEREBY ORDERED that the [mother] is to have the minor children with her for the 1984 Christmas and New Year holiday and that the [father] is to have the minor children with him for the 1984 Thanksgiving holiday. IT IS FURTHER ORDERED that the children's birthdays are to be included among the alternate major holidays hereinabove set forth, provided, however, that the exercise of such visitation does not unduly interfere with the children's schooling.
AND IT IS FURTHER HEREBY ORDERED that for the summer of 1984, the [father] shall have the minor children with him for the last week of June and the full month of July, and IT IS FURTHER ORDERED that for all summers beginning with 1985, that the [father] shall have the minor children with him for a period of six weeks during the summertime, said time to be between June 15th and August 15th of each year, subject however during such times to reasonable rights of visitation in the [mother].
AND IT IS FURTHER HEREBY ORDERED that the [father] shall be entitled to have the children with him for two (2) weekends per month, beginning at 5:00 o'clock p.m. on Friday and continuing until 5:00 o'clock p.m. on Sunday. * * *
* * * * * *
AND IT IS FURTHER HEREBY ORDERED that the Court shall retain continuing jurisdiction over the parties and the subject matter of this action for purposes of enforcing this Decree of Divorce and for purposes of exercising continuing jurisdiction over matters of alimony child custody and support and related matters.
Soon after the divorce, the two boys moved with their mother to Texas where she resumed her career as a home demonstration agent for the Texas Department of Agricultural Extension Service. The father, a Wyoming rancher, remarried and thereafter maintained a continuous Wyoming residency. This protracted battle started when the divorce decree visitation provision was not honored by the mother following her move to Texas with the children shortly after the divorce and has, for almost eight years, never abated.
In 1985 the father travelled to Texas to get his children for a visit to Wyoming, but was not allowed to see them. Upon returning home, he filed a motion in the Wyoming district court which had jurisdiction over his divorce for an order to show cause why the mother should not be held in contempt. Citing Wyoming's Uniform Child Custody Jurisdiction Act (UCCJA), Wyo.Stat. §§ 20-5-101 through 20-5-125 (1987), and the federal Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. § 1738A (1989), the mother resisted with a motion asking the district court to dismiss the father's show cause motion and to decline jurisdiction in favor of a Texas court. In the alternative, she requested that the Wyoming district court vacate the hearing scheduled for her to show cause pending the outcome of her Tyler County, Texas District Court motion to modify the divorce decree and for a restraining order. 3 Finally, the mother filed a petition in the Wyoming court to modify the divorce decree via a request for a restraining order and discontinuance of the father's right of visitation.
The Wyoming district court refused to decline jurisdiction and, instead, ordered the mother to bring the children to Wyoming. The order included a provision for a June 18, 1985 hearing on the order to show cause. With the children present in Wyoming when the mother appeared at the hearing, the district court granted the father summer visitation rights. Later that fall, the father and mother stipulated to the following:
Janie S. Marquiss and Gary C. Marquiss agree that all previously ordered visitation shall be abided by the parties. To clarify the visitation as to the holidays, the parties agree that Gary C. Marquiss shall have the Christmas/New Years Holiday to coincide with the school vacation in 1985 and that Janie S. Marquiss shall have the Thanksgiving 1985 holiday vacation and the Easter/Spring Break vacation in 1986. In 1986 Gary C. Marquiss will have the Thanksgiving holiday vacation and in 1987 the Easter/Spring Break vacation whichever is longer and Janie S. Marquiss shall have the Christmas/New Years holiday in 1986. The parties shall alternate holiday vacations thereafter. The parties shall alternate the children's birthdays if practical.
The stipulation was followed by a conforming order to dismiss which provided:
This matter having been set down for hearing on August 16, 1985 and prior to that time the parties having entered into a stipulation whereby [mother] is agreeing to dismiss her petition and to provide for counseling and as the court has other concerns beyond the stipulation,
IT IS THEREFORE HEREBY ORDERED that the Petition to Modify the Divorce Decree filed by Janie S. Marquiss shall be and is hereby dismissed without prejudice.
IT IS FURTHER ORDERED that the parties shall abide by all previously ordered visitation.
IT IS FURTHER ORDERED that Gary C. Marquiss shall have the Christmas/New Years Holiday to coincide with the school vacation in 1985 and that Janie S. Marquiss shall have the Thanksgiving 1985 holiday vacation and the Easter/Spring Break vacation in 1986. In 1986 Gary C. Marquiss will have the Thanksgiving holiday vacation and in 1987 the Easter/Spring Break vacation whichever is longer and Janie S. Marquiss shall have the Christmas/New Years holiday in 1986. The parties shall alternate holiday vacations thereafter. The parties shall alternate the children's birthdays if practical.
IT IS FURTHER ORDERED that the [mother] be evaluated by a licensed psychologist or psychiatrist and the evaluation report to be sent to the court and counsel within four (4) months of the date of this order. The counselor shall address the issues as to whether or not Janie S. Marquiss is stable enough to be the custodial parent of the boys and further whether or not she is emotionally mature enough and able to insulate the children from her trauma as a result of the divorce. Janie S. Marquiss is to bear the expenses of the evaluation.
IT IS FURTHER ORDERED that all psychiatric reports shall be sealed subject to court order.
IT IS FURTHER ORDERED that the minor children of the parties, * * * are to continue in counseling at least bi-monthly as long as the counselor feels it is necessary. [The father] is to bear the expenses of said counseling.
IT IS FURTHER ORDERED that Gary C. Marquiss and Janie S. Marquiss are to get additional counseling as is needed and prescribed as a result of the evaluations that have been performed and will be performed in the future. In addition to the counseling, Gary C. Marquiss is to take the parent effectiveness class offered by the Juvenile Planning Counsel * * * within the next three (3) months. Further, Janie S. Marquiss is to take an equivalent class if offered in the area of her residence or read the book Parent Effectiveness Training or its equivalent within the next three months.
Despite the stipulated intentions of the parents and the 1985 conforming order, it appears that the father has not enjoyed visitation privileges with his sons since 1986...
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