McGuire v. McGuire

• Decision Date: 08 December 1962
• Docket Number: No. 42912,42912
• Citation: 376 P.2d 908,190 Kan. 524
• Parties: Wanda M. McGUIRE and Nema Dunn, Appellants, v. R. Elwood McGUIRE, Appellee.
• Court: Kansas Supreme Court

Page 908

376 P.2d 908

190 Kan. 524

Wanda M. McGUIRE and Nema Dunn, Appellants, v. R. Elwood McGUIRE, Appellee.

No. 42912.

Supreme Court of Kansas.

Dec. 8, 1962.

Syllabus by the Court.

1. Where in attempting to perfect an appeal to this court under the provisions of G.S.1949, 60-3306, no proof of service of the notice of appeal or acknowledgment thereof is filed with the clerk of the trial court within the time prescribed by G.S.1949, 60-3309, even though it is admitted the notice of appeal in fact was properly served, this court has no jurisdiction of the attempted appeal and it must be dismissed (Following Nicolay v. Parker, 185 Kan. 481, 345 P.2d 1013, and other decisions cited in the opinion.).

2. A parent who is able to care for his children and desires to do so, and who has not been found to be an unfit person to have their custody in an action or proceeding where that question is in issue, is entitled to custody as against grandparents or others who have no permanent or legal right to custody (Following Christlieb v. Christlieb, 179 Kan. 408, 295 P.2d 658, and numerous decisions cited in the opinion.).

3. In this jurisdiction attorney fees are not chargeable as costs against either party in the absence of a clear and specific statutory provision authorizing their allowance.

4. The record in a child custody proceeding is examined in the light of issues subject to appellate review and held to disclose no reversible error.

Robert M. Baker, Ashland, argued the cause, and O. W. Bilyeu, Ashland, was with him on the briefs for appellant Nema Dunn.

Donald Brown, Pratt, and Douglas G. McKinnon and Ira Chrisman, Denver, Colo., were on the briefs for appellant Wanda M. McGuire.

Paul R. Wunsch, Kingman, argued the cause, and Chas. H. Stewart and Robert S. Wunsch, Kingman, were with him on the briefs for the appellee.

PARKER, Chief Justice.

This appeal, the aftermath of a divorce action, involves what should be the last of a prolonged series of controversies regarding the custody of two minor children of divorced parents. The participating adults are the appellant mother, Wanda M. McGuire (now James), the appellant maternal grandmother, Nema Dunn, and the appellee father, R. Elwood McGuire. The unfortunate children are Sherry McGuire, a daughter and Kenneth McGuire, a son, who, on the date of the custody order here involved, were eight and six years of age respectively.

Much time and space in the abstracts and briefs of record is devoted to the merits of disputes existing among the parties between March 9, 1959, the date when the district court of Pratt County rendered the original divorce decree, to the latter part of August or the forepart of September 1961, the date on which the father commenced the instant custody proceeding in the same court. In the face of the record presented such disputes have little, if any, bearing on the merits of the issues involved in the present appeal. For that reason no further reference will be made to the facts relating to such disputes unless they become necessary to dispose of questions raised respecting the sufficiency of the evidence to sustain the involved decision and judgment of the district court.

The facts, highly summarized, required to give readers of this opinion a proper understanding of what we deem to be the decisive issues involved on appellate review of the decision and judgment just mentioned will now be stated.

The father's application, asking that the district court of Pratt County change a prior custody order and judgment, the validity of which is not here in question, giving the maternal grandmother custody of the minor children and that he be granted their custody, was filed at a time when, pursuant to the terms and conditions of the prior order and judgment, such children were residents of, and domiciled in, Pratt County.

In substance such application stated that since the date of the prior custody order there had been a change in conditions (detailing them) which, since the father was now remarried, made it possible for him to maintain a suitable and proper home for his children, and alleged that it was not to the best interest of such children that their custody be given to either the maternal grandmother or the mother.

In response to the father's application the maternal grandmother filed an answer wherein she alleged there had been no material change of conditions warranting a change in the custody of the children; asserted that all allegations upon which the father based his application for a change of custody were res judicata and he was precluded from raising any of the issues contained in such application by virtue of estoppel; charged that the father was not a fit and proper person to care for the children; and alleged that she was a fit and proper person to continue with their care, custody and control.

The mother also resisted the father's application by way of an answer wherein, in substance, she averred that the facts upon which he relied in support of his application had theretofore been judicially determined and were res judicata; stated that the application failed to set forth sufficient facts to support his claim for change of custody as to her or the maternal grandmother; alleged that she and the maternal grandmother were fit and proper persons to have the custody of the children, but that if a change was to be made she should be granted custody; and charged that the father was not a fit and proper person to have custody.

After joinder of issues, as heretofore indicated, the court, at a time when all parties were present in person and represented by counsel, held a full and complete hearing at which all interested parties were permitted to adduce evidence in support of their respective positions. The result of that hearing is fully demonstrated by the district court's journal entry of judgment which should be quoted at some length. So far as pertinent to all questions raised by the parties, which are subject to appellate review, that instrument reads:

'Thereupon, the defendant (appellee) introduced his evidence and rested. Thereupon, a demurrer was interposed on behalf of the plaintiff (appellant), Wanda M. James, formerly Wanda M. McGuire, which demurrer was by the court considered and overruled. Thereupon, a demurrer was interposed on behalf of Nema M. Dunn as to the evidence offered by the defendant (appellee), which demurrer was considered by the court and duly overruled.

'Thereupon, evidence was offered on bahalf of Nema M. Dunn, and after the conclusion of such, evidence was offered on behalf of Mrs. Wanda M. James, the mother of said children, and after the conclusion of all evidence and after argument by counsel, the court finds that the defendant (appellee) is a fit and proper person to have the care, custody, and control of the minor children, Sherry McGuire and Kenneth McGuire.

'The court further finds that the grandmother, Nema M. Dunn, has no rights under the law as to the care, custody, and control of such children, and that her claim to such care, custody, and control is denied in that the father has paramount rights to the care, custody and control of said children, he being a fit and proper person to have such care and custody of the children.

'The court further finds that the mother of the children, Wanda M. James, is not a fit and proper person to have the care, custody, and control of said children, and her claim to the care and custody of such minor children is denied.

'IT IS THEREFORE BY THE COURT ORDERED, ADJUDGED, AND DECREED that the father of the above named children, R. Elwood McGuire, is a fit and proper person to have the care, custody, and control of the minor children and said children are therefore placed in the custody of the father.

'IT IS FURTHER ORDERED, ADJUDGED, AND DECREED BY THE COURT that the father, having found to be a fit and proper person to have the care, custody, and control of his minor children, under the law has paramount rights thereto as between him and the grandmother, Nema M. Dunn, and IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED BY THE COURT that Nema M. Dunn has no right to the care, custody, and control of such children.

'IT IS FURTHER ORDERED, ADJUDGED, AND DECREED BY THE COURT that the mother, Wanda M. James, is not a fit and proper person to have the care, custody, and control of such children, and her claims to the care, custody and control of such children is therefore denied.

'IT IS FURTHER ORDERED, ADJUDGED, AND DECREED BY THE COURT that reasonable rights of visitation with said children should be granted to the mother, Wanda M. James, and it is provided that in connection with such visitation rights the children should from time to time be taken to the home of the grandmother, Nema M. Dunn, and that Wanda M. James shall be permitted to visit with said children while such children are at the home of the grandmother.'

Following rendition of the foregoing orders and judgment the appellant Wanda M. McGuire and the appellant Nema Dunn gave separate notices of appeal to this court and now seek appellate review of such orders and judgment.

At the outset we are confronted with the question whether the appellant Wanda M. McGuire has perfected an appeal within the time prescribed by our statute (G.S.1949, 60-3306 and 60-3309). This presents a jurisdictional question and must be determined even though the parties have not seen fit to raise it.

The jurisdiction of this court to entertain an appeal is conferred by statute, pursuant to Article 3, Section 3 of the Constitution of Kansas and, when the record discloses lack of jurisdiction by reason of noncompliance with the sections of the statute above cited, it is the duty of the Supreme Court to dismiss the appeal (See Polzin v. National Cooperative Refinery Ass'n, 179 Kan. 670, 298 P.2d 333, on rehearing 180 Kan. 178, 302 P.2d 1003; Thompson v. Groendyke Transport, Inc., 182 Kan. 616, 322 P.2d...