McCullough v. Hudspeth

• Decision Date: 03 August 1978
• Docket Number: No. 76-349-A,76-349-A
• Citation: 389 A.2d 1242,120 R.I. 598
• Parties: Mary Lee McCULLOUGH v. Robert HUDSPETH. ppeal.
• Court: Rhode Island Supreme Court

Page 1242

389 A.2d 1242

120 R.I. 598

Mary Lee McCULLOUGH v. Robert HUDSPETH.

No. 76-349-Appeal.

Supreme Court of Rhode Island.

Aug. 3, 1978.

[120 R.I. 605] Haiganush R. Bedrosian, Providence, for petitioner-appellee.

James J. McGair, Providence, for respondent-appellant.

OPINION

JOSLIN, Justice.

This is a dispute between divorced parents over the custody of their minor child, Scott, who was nearly 10 years old when the case was heard in the Family Court. The case is here on the father's appeal.

On March 23, 1967 the parties were divorced in Mississippi. Custody of Scott, the only child of the marriage, was awarded to the mother, and the father was given visitation rights. At the time of the Family Court hearing, Scott lived in Providence with his mother, her second husband and their daughter, while the father resided alone in Santa Fe, New Mexico.

In 1972-73, disagreements between the parties concerning the father's alleged abuse of his visitation rights led the mother, who was then a Massachusetts resident, to initiate custody proceedings in Pennsylvania where the father then resided. Those proceedings were concluded by an order of the Orphan's Court Division of the Court of Common Pleas of Delaware County, Pennsylvania, which incorporated a stipulation wherein the parties spelled out the father's visitation rights and agreed that each of them would deposit $500 in an escrow account to ensure good faith and compliance.

Sometime after entry of that order, the father moved to New Mexico. Visitations in subsequent years apparently were amicable until the visit scheduled for Christmas 1975. That visit was prevented by an ex parte restraining order entered by the Family Court in response to the wife's petitioning that court to reaffirm her custody of Scott, and to require the father to post a bond "or some other form of security" to ensure Scott's return to this state. The father countered with a motion seeking custody of Scott, an order of contempt against the mother for alleged failures to abide by the Pennsylvania order, forfeiture of the mother's $500 in the Pennsylvania escrow account, "a substantial performance bond and/or cash" from the mother to ensure her compliance with his future visitation rights, and other relief which need not be detailed here.

At the conclusion of a 3-day Family Court hearing at which both parties testified about various disagreements which allegedly had arisen concerning the father's visitation rights with Scott, the court denied the father's motion; reaffirmed custody of Scott with the mother; modified the visitation provisions of the Pennsylvania order, subject to further review if the father should move to Rhode Island; and, as a condition for out-of-state visitation with Scott, directed the father to post a $10,000 cash bond to assure the child's safe return to Rhode Island. The father challenges only the requirement that he post a bond, and he does so on three grounds.

The father argues, first, that the full faith and credit clause of the Federal Constitution precluded the Family Court from modifying the Pennsylvania order. ¹ Although this clause commands our courts to give the judgment of a sister state full credit, it does not confer upon that judgment a constitutional claim to a more conclusive effect in our courts than it would have in the courts of the state where rendered. In short, "the State of the forum has at least as much leeway to disregard the judgment, to qualify it, or to depart from it as does the State where it was rendered." New York ex rel. Halvey v. Halvey, 330 U.S. 610, 615, 67 S.Ct. 903, 906, 91 L.Ed. 1133, 1136 (1947). Accord, Ford v. Ford, 371 U.S. 187, 192, 83 S.Ct. 273, 276, 9 L.Ed.2d 240, 244 (1962). Compare, Culpepper v. Martins, 96 R.I. 328, 333, 191 A.2d 285, 288 (1963).

In this case our reading of Pennsylvania law convinces us that there, as here, ² child custody orders are temporary in nature and are always subject to modification to meet changed conditions affecting the child's welfare. Commonwealth v. Daven, 298 Pa. 416, 419, 148 A. 524, 526 (1930); Friedman v. Friedman, 224 Pa.Super. 530, 535, 307 A.2d 292, 295 (1973); Commonwealth ex rel. O'Hey v. McCurdy, 199 Pa.Super. 22, 24, 184 A.2d 290, 291 (1962); Commonwealth v. Bishop, 185 Pa.Super. 362, 367, 137 A.2d 822, 824 (1958).

We conclude, therefore, that the full faith and credit mandate did not inhibit the Family Court from making such orders and decrees concerning Scott's custody as his welfare required.

The father, however, relying on Rogers v. Rogers, 98 R.I. 263, 201 A.2d 140 (1964) and State v. Zittel, 94 R.I. 325, 180 A.2d 455 (1962), next argues that the Family Court is a statutory tribunal possessing only the jurisdiction conferred upon it by the Family Court Act; that nothing in that Act vests it with jurisdiction to condition its permission to a noncustodial parent to take a child beyond the limits of the state upon the posting of a bond for the child's return, and that its order to that effect was therefore erroneous.

In pressing this argument the father loses sight of G.L.1956 (1969 Reenactment) § 8-10-3, as amended by P.L.1975, ch. 3, § 1, which specifically confers upon the Family Court the power to provide for the support and custody of children; he also ignores other legislation authorizing the Family Court "to enter such decrees and orders as may be necessary or proper to carry into full effect all the powers and jurisdiction conferred upon it by law." Goldstein v. Goldstein, 109 R.I. 428, 430, 286 A.2d 589, 591 (1972). ³

So, too, does the father fail to take into account that the practice has long prevailed in this state of requiring a bond in appropriate circumstances to ensure the return of a child whom a parent has been allowed to remove temporarily from the state; that the practice has been recognized or approved by this court, at least in dicta, in In re Smith, 100 R.I. 663, 667, 219 A.2d 126, 129 (1966), and in Chatelain v. Chatelain, 93 R.I. 136, 142, 172 A.2d 332, 335 (1961); and that courts elsewhere, almost without exception, have ruled that a bond may be required for that purpose. Annot., 154 A.L.R. 552, 562-64 (1945). See, e. g., Wood v. Wood, 76 Ariz. 412, 416-17, 265 P.2d 778, 781 (1954); Durham v. Spence, 228 Ga. 525, 531, 186 S.E.2d 723, 728 (1972); Turney v. Nooney, 9 N.J.Super. 333, 340, 74 A.2d 356, 359 (1950), and further proceedings, 21 N.J.Super. 522, 525, 91 A.2d 418, 419-20 (1952); People ex rel. Halvey v. Halvey, 185 Misc. 52, 55, 55 N.Y.S.2d 761, 764, Aff'd, 269 App.Div. 1019, 59 N.Y.S.2d 396 (1945), Aff'd, 295 N.Y. 836, 66 N.E.2d 851 (1946), Aff'd, 330 U.S. 610, 67 S.Ct. 903, 91 L.Ed. 1133 (1947); Kenworthy v. Kenworthy, 197 Okl. 679, 681, 174 P.2d 587, 588 (1946); Commonwealth ex rel. Balla v. Wreski, 165 Pa.Super. 6, 11, 67 A.2d 595, 597 (1949); Commonwealth ex rel. Warner v. Warner, 156 Pa.Super. 465, 468, 40 A.2d 886, 887 (1945). Contra, Jeans v. Jeans, 348 S.W.2d 145, 158-59 (Mo.1961). We can perceive no sound reason why at this time we should reject the practice.

Finally, the father contends that requiring him to post a cash bond was inappropriate. Some decisions apparently attach great weight to the potential risk in an out-of-state visitation that the noncustodial parent may attempt to relitigate the custody issue in another state, or even fail to return the child within the required time. Accordingly, those decisions almost routinely allow imposition of a bond as a requisite to permitting removal of the child from the state. Annot., 154 A.L.R. at 562-64. See, e. g., Nelson v. Card, 162 Colo. 274, 275, 425 P.2d 276, 277 (1967); Kirby v. Kirby, 126 Wash. 530, 533, 219 P. 27, 28 (1923).

Other courts do not exact a bond merely because of that potential risk. They hold that each case must stand on its own facts and that a bond should not be required absent a showing of need therefor. Ellison v. Ellison, 48 Ala.App. 80, 83, 261 So.2d 911, 914 (1972); Grimditch v. Grimditch, 71 Ariz. 237, 238, 226 P.2d 142, 142 (1951) (per curiam); Massey v. James, 251 Ark. 217, 219, 471 S.W.2d 770, 771 (1971); Lyritzis v. Lyritzis, 55 App.Div.2d 946, 391 N.Y.S.2d 133, 134 (1977) (mem.); Parrish v. Parrish, 116 Va. 476, 482-83, 82 S.E. 119, 121-22 (1914).

We adopt the latter approach. To implement that approach properly, a trial justice should specify in his decision the factors influencing him in deciding whether or not to require a bond. ⁴ Absent this requirement, meaningful review of whether that decision constitutes an abuse of discretion would be impossible in most, if not all, cases.

In this case, despite a careful reading of the trial justice's decision, we are unable to determine his rationale for ordering a bond. Some portions...