Nicholaus v. Nicholaus, No. 87-293

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: Before BROWN; MACY
• Citation: 756 P.2d 1338
• Docket Number: No. 87-293
• Decision Date: 24 June 1988
• Parties: Sheila Marvel NICHOLAUS, Appellant (Defendant/Respondent), v. Eric Shaw NICHOLAUS, Appellee (Plaintiff/Petitioner).

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756 P.2d 1338 Sheila Marvel NICHOLAUS, Appellant (Defendant/Respondent),
v.
Eric Shaw NICHOLAUS, Appellee (Plaintiff/Petitioner). No. 87-293. Supreme Court of Wyoming. June 24, 1988.

C. Robert Klus, Jr. of the C. Robert Klus, Jr. Law Office, Gillette, for appellant.

Deborah D. Michaels of Banks, Johnson, Wolfe, Hallock & Michaels, Gillette, for appellee.

Before BROWN, C.J., and THOMAS, CARDINE, URBIGKIT and MACY, JJ.

MACY, Justice.

This is an appeal from an order of the District Court of the Sixth Judicial District within and for Campbell County (Campbell County District Court) modifying the child custody provisions in a prior divorce decree issued by the District Court of the Third Judicial District within and for Sweetwater County (Sweetwater County District Court). Appellant Sheila Marvel Nicholaus initially presented and briefed issues respecting the grounds and evidence relied upon by the Campbell County District Court in changing the custody of the child. Appellee Eric Shaw Nicholaus responded by brief accordingly. Perceiving a question as to the Campbell County District Court's jurisdiction to modify the previous order, this Court requested additional briefing by the parties on jurisdictional issues. We now conclude that the Campbell County District Court was without jurisdiction, and we vacate the judgment and order modifying the custody provisions of the divorce decree.

Appellant, in response to the request for further briefing, phrases the issues identified by this Court in the following manner:

"I. DID THE SIXTH JUDICIAL DISTRICT COURT WITHIN AND FOR CAMPBELL COUNTY, WYOMING HAVE JURISDICTION TO MODIFY THE CHILD CUSTODY, VISITATION AND SUPPORT PROVISIONS OF THE DECREE OF DIVORCE ORIGINALLY RENDERED AND ENTERED BY THE THIRD JUDICIAL DISTRICT COURT WITHIN AND FOR SWEETWATER COUNTY, WYOMING?

"II. IF THE SIXTH JUDICIAL DISTRICT COURT WITHIN AND FOR CAMPBELL COUNTY, WYOMING DID NOT HAVE JURISDICTION TO MODIFY

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THE CHILD CUSTODY, VISITATION AND SUPPORT PROVISIONS OF THE DECREE OF DIVORCE ORIGINALLY RENDERED AND ENTERED BY THE THIRD JUDICIAL DISTRICT COURT WITHIN AND FOR SWEETWATER COUNTY, WYOMING, WAS SUCH JURISDICTION CREATED OR CONFERRED UPON THE CAMPBELL COUNTY DISTRICT COURT BY STIPULATION, CONSENT, ESTOPPEL OR WAIVER OF THE PARTIES?

"III. IF THE SIXTH JUDICIAL DISTRICT COURT WITHIN AND FOR CAMPBELL COUNTY, WYOMING HAD JURISDICTION TO MODIFY THE CHILD CUSTODY, VISITATION AND SUPPORT PROVISIONS OF THE DECREE OF DIVORCE ORIGINALLY RENDERED AND ENTERED BY THE THIRD JUDICIAL DISTRICT COURT WITHIN AND FOR SWEETWATER COUNTY, WYOMING, COULD A SUBSTANTIAL CHANGE OF CIRCUMSTANCES SUFFICIENT TO WARRANT MODIFICATION OF THE CHILD CUSTODY, VISITATION AND SUPPORT PROVISIONS OF SAID DECREE BE PROVEN IN THE CAMPBELL COUNTY DISTRICT COURT WITHOUT ADMITTING INTO EVIDENCE THE RECORD AND TRANSCRIPT OF THE HEARING AND EVIDENCE BEFORE THE SWEETWATER COUNTY DISTRICT COURT WHEN IT ISSUED THE DECREE OF DIVORCE?"

Appellant and appellee were married in Montana on July 15, 1978. The marriage produced one child, Douglas Shaw Nicholaus, who was born March 27, 1980. Subsequently, appellee filed for a divorce in the Sweetwater County District Court. Although appellee had filed for the divorce, the Sweetwater County District Court granted a decree of divorce to appellant on August 30, 1984. The divorce decree awarded primary care, custody, and control of the child to appellant with liberal visitation provisions for appellee. Thereafter, appellee moved to Bozeman, Montana, and appellant and the child moved to Gillette, Wyoming. The record in the instant case does not include any record of the earlier proceeding other than a copy of the decree of divorce.

On May 26, 1987, appellee filed a petition for modification of the divorce decree in the Campbell County District Court. Appellee alleged in the petition that a substantial change in circumstances warranted a change in custody from the mother to him. Appellant responded and counterclaimed for a modification of the original decree to increase appellee's child support obligation. Appellee filed a response to the counterclaim. Neither party questioned or challenged the jurisdiction of the Campbell County District Court.

After a hearing, the Campbell County District Court entered an order changing custody of the child to appellee, effective November 1, 1987. The Campbell County District Court based its decision upon a finding that a substantial change in circumstances and the best interests of the child warranted the change in custody. The Campbell County District Court additionally ordered appellant to make child support payments to appellee. This appeal followed.

Although neither party raised the issue of the jurisdiction of the Campbell County District Court to modify the divorce decree, we are free to raise that issue pursuant to our general superintending control over all the courts of this state. Wyo. Const. Art. 5, § 2. That authority allows us to decide a case upon any point which we believe the ends of justice require. Gilbreath v. Wallace, Wyo., 738 P.2d 717 (1987); Allen v. Allen, Wyo., 550 P.2d 1137 (1976). We have said:

"This court has inherent power to control proceedings before it and under its jurisdiction and can and will summarily raise and dispose of questions arising with respect to jurisdiction. The supreme court has the duty to consider the integrity of an appeal addressed to jurisdictional defect, even though not called to its attention by any litigant." Hayes v. State, Wyo., 599 P.2d 569, 570 (1979).

See also Parker v. Haller, Wyo., 751 P.2d 372 (1988). We therefore address the issues

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regarding the jurisdiction of the Campbell County District Court as presented pursuant to our request by the supplemental briefs of the parties. Our resolution of these issues precludes us from reaching the merits of the controversy with respect to the change of custody as initially presented by the parties.

We turn first to the question of whether the Campbell...