Murphy v. Murphy

• Decision Date: 04 April 1978
• Docket Number: No. 1,No. 50968,50968,1
• Citation: 581 P.2d 489
• Parties: William James MURPHY, Appellant, v. Tomey Jean MURPHY, Appellee. (Division)
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

Page 489

581 P.2d 489

William James MURPHY, Appellant, v. Tomey Jean MURPHY, Appellee.

No. 50968.

Court of Appeals of Oklahoma (Division No. 1).

April 4, 1978 Released for Publication by Order of Court of Appeals May 25, 1978.

Appeal from the District Court of Tulsa County; David Winslow, Judge.

REVERSED AND REMANDED.

Frederick L. Boss, Jr., and Bethel B. Larey & Lance L. Larey, by Bethel B. Larey, Tulsa, for appellant.

John J. Tanner, Tulsa, for appellee.

ROMANG, Judge:

In this appeal we must address the question of the effect in Oklahoma of a divorce and child custody decree of a New Mexico court where both spouses appeared, but where the former husband now seeks to question the domiciliary jurisdiction of the New Mexico courts, a question he saw fit not to raise in New Mexico. This could have been a complex and confusing case but for the professional briefing by both parties.

William and Tomey Murphy were married and apparently domiciled in Oklahoma. He being a horse trainer and she a jockey, they followed the racing circuit in Colorado and New Mexico, among other places. Two children were born of the marriage a boy age 5 and a girl age 11/2 at the time of the proceedings below.

While in Raton, New Mexico, the wife informed her husband of her desire to get a divorce. She sought out legal counsel and filed the appropriate verified petition alleging, Inter alia, that both parties "are now and have been actual bona fide residents of the County of Colfax, State of New Mexico, for more than six months . . . ." The husband filed a sworn "Waiver of Service, Entry of Appearance, and Consent to Hearing" consenting, Inter alia, "that judgment may be entered in the above entitled cause in accordance with the plaintiff's complaint forthwith . . . without further notice to the defendant." The wife's petition had sought a divorce, custody of the two children with reasonable visitation rights in the husband, child support of $150 per month per child, attorneys fees, and approval of the couples' agreed division of their community property. A "Final Judgment and Decree" was entered by the New Mexico court as requested. The husband did not actually appear at that hearing.

A month or so later, the husband (Appellant hereafter) filed a "Petition for Modification of Final Judgment and Decree" in the New Mexico court. This relief was denied and, Sua sponte, the court found the Appellant in contempt for his failure to deliver the children to the wife (Appellee hereafter). The facts surrounding this proceeding are confused but not apparently critical to this appeal. Appellant apparently purged himself of the contempt by delivery of the children.

Some time later, the Appellant acquired custody of the boy under the reasonable visitation provisions of the final decree and, with Appellee's consent, brought the son to Oklahoma. Thus the boy was legally brought into this State.

In Oklahoma the Appellant filed the instant action seeking a divorce (on the ground the New Mexico decree was void), approval of the parties' earlier agreed property settlement, custody of the boy, custody in the Appellee of the girl, and $150 per month child support for the girl. It is noteworthy that the only difference in the New Mexico decree and the relief sought by Appellant herein is the custody of the boy.

After an Ex parte proceeding on the merits, the District Court heard Appellee's motions and found that the New Mexico decree was entitled to full faith and credit and that the Oklahoma court was without jurisdiction in the matter. From this decision, Appellant appeals alleging (1) that the District Court improperly considered the New Mexico proceedings without proper authentication under 28 U.S.C. § 1738 and 12 O.S.1971, § 485 (we also note the applicability of 12 O.S.1971, § 1705.01); and (2) that the District Court improperly applied the doctrine of Full Faith and Credit.

A. AUTHENTICATION OF SISTER STATE JUDICIAL PROCEEDINGS

Article IV, Section 1 of the U.S. Constitution requires each state to give full faith and credit to the judicial proceedings of every other state and that Congress may proscribe the manner in which they may be But this method of authentication is not exclusive and state statutes can prescribe less stringent standards for proof of a sister state judgment. See U. S. v. Mathies, 350 F.2d 963 (3rd Cir. 1965); Gribble v. Pioneer Press. Co., 15 F. 689 (C.C.Minn.1883); In re Peterson, 22 N.D. 480, 134 N.W. 751 (1912) (dicta); and Block v. Schafer, 62 Okl. 114, 162 P. 456 (1917) (dicta). Accordingly, we must also consider two Oklahoma statutes: 12 O.S.1971, §§ 485 and 1705.01.

proved and the effect thereof. Under this authority Congress has provided for authentication of judicial proceedings "by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form." 28 U.S.C. § 1738. When so authenticated the judicial proceedings "shall have the same full faith and credit in . . . (Oklahoma) as they have by law or usage in the courts of such State . . . from which they are taken (i. e. New Mexico)." 28 U.S.C. § 1738.

While 12 O.S.1971, § 485 speaks of "courts of a foreign country", the statutory standards have been applied to sister statutes. See e. g. McIntire v. Torrance, 185 Okl. 19, 90 P.2d 17 (1939). In any event § 1705.01 clearly applies to any "official record kept within . . . any state . . . ." The standards of the two statutes are not only similar to each other but similar to 28 U.S.C. § 1738 as well. Thus § 485 requires that the proceedings (1) be attested by the clerk or official custodian, (2) be accompanied by a certificate of a judge of the court to the effect that the person attesting the copy is the legal custodian and that his/her signature is genuine, and (3) be accompanied by a certificate of the custodian of the seal of the state that the court is lawfully constituted. Section 1705.01 provides for proof by (1) an official publication, or (2) "a copy attested by the officer having legal custody of the record, or by his deputy, and accompanied by a certificate that such officer has the custody." Further provision is made for the judge to certify the attesting officer's custody.

In the instant case the New Mexico proceedings were evidenced by copies attested as true and accurate by the Deputy Clerk of the New Mexico court. No effort was made to secure the additional certificates of the custodians authority as required by 28 U.S.C. § 1738, 12 O.S.1971, §§ 485 and 1705.01 or the state seal of the court's authority under § 485 (this provision may have been rendered unnecessary by § 1705.01 or may be inconsistent with 28 U.S.C. § 1738).

[2-4] Thus it is clear that the evidence in support of the New Mexico proceedings was not sufficient to compel full faith and credit under 28 U.S.C. § 1738 or to prove the proceedings under 12 O.S.1971, §§ 485 or 1705.01. But this is not an adequate basis for reversing the trial court. At no time was it alleged that the copies proffered were inaccurate or misleading. Appellant has failed to indicate what prejudice he has suffered by reason of the error. Appellate review is not, and ought not be, a word game or a search for theoretically perfect proceedings below. The legislature has enjoined us to be concerned with error which does affect "the substantial rights of the adverse party." 12 O.S.1971, § 78. In § 78 it is provided that a "court . . . Must disregard any error or defect in the . . . proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed by reason of such error or defect." (Emphasis added.) No substantial violation is shown to result from the lack of a certificate of the deputy clerk's custody and no challenge is made to the accuracy of the documents or the fact of the clerk's custody. No reversible error occurred.

B. FULL FAITH AND CREDIT

[5,6] The U.S. Constitution requires Oklahoma courts to give "Full Faith and Credit" to the judicial proceedings of New Mexico, Inter alia. Article IV § 1. As already indicated the Constitution authorizes Congress to prescribe the effect of properly proved proceedings. Under this authority Congress has required that properly proven judicial proceedings of New Mexico be given "the same full faith and credit . . . (in Oklahoma) as they have by law or usage in . . . (New Mexico)." 28 U.S.C. § 1738. It is always the effect where rendered which determines the effect in a sister state. Appellant properly argues that the beginning inquiry must be a determination of the effect of the decree in New Mexico and whether it is subject to collateral attack in that state. If not, it may not be so attacked in this state.

It must be noted that what Appellant seeks to do is to set aside the New Mexico decree on the ground that the New Mexico court lacked jurisdiction over the subject matter because neither Appellant nor Appellee were domiciled in New Mexico nor had either of them been bona fide, actual residents for six months preceding the New Mexico proceedings. This factual question was not reached below and we do not reach it. The issue is simply whether full faith and credit precludes further inquiry, in this case, of the fact of residence and domicile.

Appellee contends that we need not reach this question since Appellant voluntarily entered an appearance and subsequently sought affirmative relief in New Mexico. Appellee, therefore, contends that Appellant is bound personally and may not now complain of the New Mexico proceedings. Appellant repeats with ample citation that parties cannot confer subject matter jurisdiction on a court by consent. That is clearly true. But it misses the thrust of Appellee's argument.

Full faith and credit is a national policy designed to pull the states together in judicial matters of civil litigation. See Leflar, American Conflicts Law ...