Marriage of Dunkley, In re

• Decision Date: 09 March 1978
• Docket Number: No. 44429,44429
• Citation: 575 P.2d 1071,89 Wn.2d 777
• Parties: In re the MARRIAGE OF James Reed DUNKLEY, Respondent, and Carolyn Jean Curtis Dunkley, Petitioner.
• Court: Washington Supreme Court

Page 777

89 Wn.2d 777

575 P.2d 1071

In re the MARRIAGE OF James Reed DUNKLEY, Respondent and Carolyn Jean Curtis Dunkley, Petitioner.

No. 44429.

Supreme Court of Washington, En Banc.

March 9, 1978.

Dan Evich, Seattle, for petitioner.

Fredrickson, Maxey & Bell, Carl Maxey, Spokane, for respondent.

HICKS, Associate Justice.

This interstate child custody dispute raises the usual conflicts of law questions, along with the usual conflicts in the collective judicial mind. Our conflicts resolved, we determine that California remains the appropriate forum to hear this claim for modification of the custody decree which was entered in favor of Mrs. Dunkley (mother) by the Riverside County Superior Court.

The trial court dismissed Mr. Dunkley's (father's) modification action, declining jurisdiction on the basis of domicile, full faith and credit, and forum non conveniens. The Court of Appeals, Division Three, reversed and remanded, holding that Washington has jurisdiction to modify temporarily a California custody order and to determine the proper forum to consider permanent modification, although the long-standing domicile prerequisite to such exercise of jurisdiction was absent. In re Marriage of Dunkley, 15 Wash.App. 775, 551 P.2d 1394 (1976), held that there were sufficient nondomiciliary contacts to confer jurisdiction, though the children's legal domicile is California. The nondomiciliary contacts are: (1) the presence of the children in Washington, and (2) personal service on the mother while she was present in the state. The court cited in support of its conclusion, In re Rankin, 76 Wash.2d 533, 458 P.2d 176 (1969), In re Marriage of Saucido, 85 Wash.2d 653, 538 P.2d 1219 (1975), and Mr. Justice Frankfurter's concurring opinion in May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221 (1953).

In Saucido we recognized the ongoing ferment nationally in the existing rule of domicile, which in this state holds that domicile of the children follows that of the parent having legal custody, and that the children must be Washington domiciliaries before the courts of our state can exercise jurisdiction. ¹ We stated 85 Wash.2d at page 660, 538 P.2d at page 1223:

We are aware that, although domicile remains a widely-recognized basis for permanent child custody jurisdiction, there is considerable support for the view there are nondomiciliary contacts with a state which may provide a sufficient basis for permanent child custody award jurisdiction. . . . These nondomiciliary contacts include (1) in personam jurisdiction over the contesting parties for custody; and (2) the presence of the child in the forum.

(Citations omitted.) However, we did not abandon the domicile rule, but went on to uphold the trial court's declination of jurisdiction as proper under the unclean hands theory, discussed later.

In Rankin we held that changed circumstances are not required to modify a default custody decree entered in another state when the children are now domiciled here. The domicile rule remained.

Also relied on by the Court of Appeals was Mr. Justice Frankfurter's dicta in May, where he cited child welfare as paramount to any adjudication by another state in a child custody dispute and stated 345 U.S. at page 536, 73 S.Ct. 840 that the "very special place in life" held by children should be reflected in the law.

While we fully agree with Mr. Justice Frankfurter's statements, share the concerns of the Court of Appeals, and have come to have considerable doubt that domicile should be continued as a blanket prerequisite for jurisdiction, we granted the mother's petition for review as we do not perceive that the Dunkley children's welfare is best served by Washington exercising even temporary jurisdiction. Further to open our courts to petitions such as this one may be a substantial disservice to future child subjects of custody disputes, in that it would tend to encourage forum shopping, child snatching, and would result in conflicting custody decrees between sister states. These evils, with attendant disruptions they cause to the stability in early environment that we recognize as critically necessary to the development of psychologically sound children, ² should be discouraged. We believe that this must be foremost in the minds of jurists as they seek to resolve these unfortunate disputes "in the best interests of the children," both those children who are immediately before the court and children in general whom we seek to prevent being dragged from courtroom to courtroom and state to state in the future.

The facts are as follows:

An interlocutory decree of divorce was granted in California on February 22, 1972, and a final decree in July 1972. The decree was entered as a result of an agreement between the parties and neither mother nor father was represented by an attorney. Father, who was soon to graduate from law school, was awarded custody. He moved to Spokane with their three young children and he remarried in October 1972. Immediately thereafter, mother petitioned in California for a modification of the custody provisions of the divorce decree. After a hearing, the petition was denied and mother was ordered to pay father $75 per child per month support for the children. Subsequently, mother moved to vacate the divorce decree on the grounds of fraud. The vacation was obtained by default.

Thereafter, a second dissolution proceeding was begun in California. A temporary custody hearing was held, resulting in custody being awarded to mother with visitation allowed to father. An order was entered which prohibited father from removing the children from California. In violation of this order, father moved the children back to Spokane where he began a dissolution action in Washington in September 1973, while the second California dissolution action was still pending. A stipulation was entered into and an order entered dismissing the cause in Washington and designating California as the proper forum.

After a 6-day trial in Riverside County Superior Court, California, in which 30 witnesses testified and 1000 pages of transcript were taken, custody was awarded jointly to mother and father. Mother was to have the children during the school year and father was to have them during the summer. This arrangement did not work. The current action arises as a result of the children's "running away" from mother in Riverside to father in Spokane in September 1975, just after they had returned from their summer visitation with father. The runaway was allegedly accomplished by Greyhound bus to Salt Lake City, Utah, then rides with strangers to Twin Falls, Idaho, and on to Coeur d'Alene, Idaho, where father picked them up.

Father's affidavit swears that he had no knowledge of the children's action until he received a phone call from them in Salt Lake City and subsequently one from Twin Falls, and that he in no way aided the children by orchestrating their trip, providing money for it, or arranging rides from the bus station to Twin Falls and then to Coeur d'Alene. Mother is adamant in her affidavit that the children were encouraged by father to leave her and that he and his agents arranged the runaway.

Mother's attorney argues unclean hands, but presented no evidence to the trial court. The Court of Appeals was apparently persuaded that father did not engineer the children's removal from California, but we remain skeptical that children ages 11 and under could, unaided, acquire $80 and the necessary fortitude to undertake an interstate trek. Nevertheless, we cannot supply what is not in the record, so mother's argument that we should decline jurisdiction under In re Mullins, 26 Wash.2d 419, 174 P.2d 790 (1946), because the children have been removed to this state in violation of a valid existing custody decree, must fail.

Mullins established the "clean hands" doctrine, which holds that Washington will not consider modification of a foreign degree when the petitioning parent has brought the child into the forum in violation of a foreign decree. The purpose, as we stated in applying the doctrine in In re Marriage of Saucido, 85 Wash.2d 653, 656, 538 P.2d 1219 (1975), is to discourage "child snatching, forum shopping, and repeated litigation of custody awards when one parent is dissatisfied with the first permanent custody award." Again, this jibes with our paramount concern in such matters, and that is respect for foreign decrees such that we can, within the limitations of the courts, insure as stable a custodial situation as possible.

Though we have no proof that father is directly responsible for the presence of the children in Washington at this time, he has previously, on occasion, violated the order of the California court. To that extent, he is before us with unclean hands.

However, we do not base our reasoning on unclean hands in this instance. Forum non conveniens, recently adopted in Washington in Werner v. Werner, 84 Wash.2d 360, 526 P.2d 370 (1974), we do find to be applicable. Though Washington may be the more convenient forum for father, who now resides here, most of the witnesses and all of the litigation to date has been in the California courts. Mother is the parent with the primary legal and physical custody during the school year and it is she who must defend her current right to the children against father's and the children's charges of unfitness. Under forum non conveniens, California appears to us to be the appropriate forum.

The trial court declined jurisdiction in this case on the basis of domicile, full faith and credit and forum non conveniens. Without attempting to sort out the difficult issue of domicile when the parents have been granted joint custody, as in this case, or determining what full faith and credit might require us to do under these circumstances, we have no question that in this instance we should defer to the custody order of the California court and we will not exercise...