Niccum v. Lawrence, 41571

• Decision Date: 05 March 1960
• Docket Number: No. 41571,41571
• Citation: 186 Kan. 223,350 P.2d 133
• Parties: Archie C. NICCUM, Jr., Appellee, v. Frances Charlene Niccum LAWRENCE, Appellant.
• Court: Kansas Supreme Court

Page 133

350 P.2d 133

186 Kan. 223

Archie C. NICCUM, Jr., Appellee, v. Frances Charlene Niccum LAWRENCE, Appellant.

No. 41571.

Supreme Court of Kansas.

March 5, 1960.

Rehearing Denied April 13, 1960.

Syllabus by the Court.

1. When custody of a minor child is given to the mother in a divorce proceeding and thereafter the mother leaves the state with her child and establishes a domicile in another state, the domicile of the child is the domicile of the mother and the court which granted the divorce and made the custody order no longer retains jurisdiction to modify or change the custody of the child (Following Leach v. Leach, 184 Kan. 335, 336 P.2d 425; Hannon v. Hannon [this day decided] 186 Kan. ----, 350 P.2d 26; and other cases cited in the opinion).

2. In an action involving change of custody of the minor child of divorced parties the record examined and it is held that, under the confronting facts and circumstances, the trial court's orders granting the father (1) temporary and (2) permanent custody of the child, whose established domicile was in Missouri, were void for lack of jurisdiction.

W. C. Jones and Harold R. Riggs, Olathe, argued the cause, and H. Thomas Payne and Howard E. Payne, Olathe, were with them on the briefs for appellant.

Robert P. Anderson, Overland Park, argued the cause, and Lyndus A. Henry, David R. Gilman, and Gwendolyn V. Falkenberg, Overland Park, were with him on the briefs for appellee.

PARKER, Chief Justice.

This is the aftermath of a divorce action in which a mother appeals from an order changing the custody of her minor child.

The basic pertinent facts on which the rights of the parties depend are not in controversy. However, they are important to a proper understanding and review of the issues involved and for that reason will be stated, in accord with our view of their import, as briefly as the state of the record permits.

Archie Niccum, Jr., 19 years of age, and Frances Charlene Schultz, who is now Mrs. Lawrence and was then 17 years of age, were married in Kansas City, Missouri, on October 2, 1953. One child, Deborah, was born to this union. Hereafter, in the interest of brevity, the individuals just named will be referred to by their christian names.

The marriage between Archie and Frances did not prove to be a success and on June 22, 1956, he filed an action for divorce against her in the district court of Johnson County, in which she consented to an emergency decree allowing him the divorce and granting her the custody of Deborah, subject to reasonable visitation rights on his part, and payment by him to her of $50 per month for support and maintenance of their minor child.

Following this divorce Frances married Robert Sites who was a Staff Sergeant in the United States Armed Forces and moved with Deborah from place to place as he was given different assignments. Thereafter she and Robert disagreed and they separated. Subsequently Frances gave birth to a child by her marriage to Sites.

Later, and in November 1957, she moved with her two children to her parents home at Creighton, Missouri, where she remained until November 14, 1958. On that date she entered into a marriage with one John Lawrence and established a home in Kansas City, Missouri, where she has since continued to reside with her husband and two children, including Deborah. Indeed, it cannot be denied that, from November 1957 up to and until the date Archie procured temporary custody of Deborah under the ex parte order, both Frances and Deborah were in truth and in fact domiciled in and residents of the State of Missouri.

In October, 1957, Archie returned from Military Service to the farm home of his parents near Edgerton, Kansas, and lived there for an undisclosed period of time. Later, having obtained gainful employment with Trans World Airlines, he lived with a fellow employee, who lived close to his work in Kansas City, until the middle of January 1959, when he again returned to live at the home of his parents.

After Archie returned to Kansas the parties and frequent difficulties over problems involving Deborah. Some of these related to failure of Archie to make child support payments in accord with the original decree. Others concerned his visitation rights with Deborah. Occasionally, if not frequently, he would take her to the home of his parents for a visit and fail to return her promptly to her mother. Frances would then call representatives in the office of the County Attorney of Johnson County who would send letters and make telephone calls to Archie requesting the return of the child. The last of such incidents occurred in January 1959. With respect thereto the record discloses Archie admitted that he did not return Deborah to her mother on this occasion for the reason he had been informed that it would be to his advantage to keep her in Johnson County until a motion, he contemplated filing for a change of her custody, was before the district court of that county. However, it should be stated that he gave up that idea when, again at the instigation of the mother and on call of the county attorney's office, he took Deborah to Olathe and delivered her to Frances who was waiting at that office.

In January 1959 Archie had failed to pay two of the $50 child support payments, one for November and the other for December, 1958. On March 16, 1959, a criminal action was filed in the magistrate court of Johnson County, against him for nonsupport upon the complaint of Frances. Thereafter he was arrested and released on bond to appear for a preliminary examination, which was set for hearing on March 23, 1959. It appears that while instructing Frances to appear at such hearing she was advised by a deputy county attorney, in accord with his usual policy, that she was to bring Deborah with her.

On March 20, 1959, three days before the date set for the preliminary hearing, Archie, through his attorneys, filed two motions, in the district court of Johnson County, in the case in which the original divorce decree had been rendered. The first prayed for an order modifying the previous order and decree of divorce by granting the plaintiff in that action (Archie) the principal custody of the minor child (Deborah), and for an order vacating further and continued payments for the support of said child. It should also be noted that this motion not only set forth the grounds relied on for the relief therein sought but expressly stated that the defendant (Frances) resided in Kansas City, Missouri, with her present husband, having in her custody the said minor child of the parties.

The second motion prayed for an order granting Archie the temporary custody of Deborah pending the hearing upon the first. It may be said that for all purposes essential to a review of the appellate issues involved it contained the following allegations:

'* * * that the defendant herein resides without the jurisdiction of the court, having in her principal custody said minor child and the plaintiff has just and reasonable cause to believe that the said defendant, although duly and properly served with notice of the hearing on his motion to amend and modify, may not appear for hearing or may not appear with said child in this county and state; * * *' (Emphasis supplied.)

Notwithstanding the allegations thereof, which have been heretofore underlined for purposes of emphasis, both motions were presented to and acted upon by the court on the day they were filed. As to the first the court entered an ex parte order directing that it be heard on March 30, 1959, and that Frances be personally served with a copy of such order, with a copy of Archie's motion attached thereto, in the same manner as service of summons is made. To the second the court entered an ex parte order finding that 'it would be in the best interests of said child (Deborah) to remain within the jurisdiction of this court during the pendency of the hearing, in the temporary custody of the plaintiff (Archie) at the residence of the plaintiff with his parents on their farm near Edgerton, Kansas.' (Emphasis supplied.)

On March 23, 1959, three days after the making of the foregoing orders, in compliance with the instructions heretofore mentioned, Frances brought Deborah to Johnson County to appear at the preliminary hearing. Thereupon a deputy sheriff of that county served the ex parte orders on Frances who complied with the requirements of the second order and permitted Archie to take custody of Deborah. Thereafter the nonsupport action was dismissed by a representative of the county attorney's office, the reason given for that action being that Frances was living in Missouri and her only remedy would have been a Uniform Reciprocal Nonsupport Action (See Laws of 1953, Chapter 187, now G.S.1959 Supp., 23-419 to 23-446, incl.) commenced in Jackson County, Missouri, and then forwarded to the State of Kansas.

Following the incidents just related Frances obtained the services of an attorney who filed a motion to modify the original decree by increasing the child support payments to $75 per month, because of a change in Archie's financial situation. This motion also included a request for the allowance of a reasonable attorney fee.

On March 30, 1959, the date it had set for the hearing of Archie's motion for an order modifying the original divorce decree by granting him the custody of the child of the parties, all parties were present, including the child who, since the date of the trial court's ex parte order, had been in the custody of Archie. Thereupon the trial court permitted the parties to introduce evidence in support of their respective motions and at the close of all such evidence and arguments by counsel took the matter under advisement. Thereafter, and on April 9, 1959, it rendered its decision wherein it found that the motion of Frances requesting an increase in the child support payments should be denied; and that Archie's motion to modify and change...