Perrenoud v. Perrenoud

• Decision Date: 03 February 1971
• Docket Number: Nos. 45957,45958,s. 45957
• Citation: 480 P.2d 749,206 Kan. 559
• Parties: Sandra L. PERRENOUD, Appellee, v. Daniel A. PERRENOUD, Appellant. Daniel A. PERRENOUD, Appellee, v. Sandra L. BROWN, formerly Sandra L. Perrenoud, Appellant.
• Court: Kansas Supreme Court

Page 749

480 P.2d 749

206 Kan. 559

Sandra L. PERRENOUD, Appellee, v. Daniel A. PERRENOUD, Appellant.

Daniel A. PERRENOUD, Appellee, v. Sandra L. BROWN, formerly Sandra L. Perrenoud, Appellant.

Nos. 45957, 45958.

Supreme Court of Kansas.

Feb. 3, 1971.

Syllabus by the Court

1. A valid marriage between the parties in a divorce action is a prerequisite upon which jurisdiction is based, and a divorce is the judicial dissolution of a marriage relationship.

2. The important allegation in a petition for divorce is that a marriage relationship exists between the parties at the commencement of the action, which is sought to be severed by the divorce proceeding.

3. It is the settled policy of this state to recognize decrees of divorce of sister states as being effectual to terminate the marital relation of the parties where such decree is procured in harmony with the laws of the state where it is rendered.

4. A party cannot invoke the jurisdiction and power of a court for the purpose of securing important rights from his adversary through its judgment and, after having obtained the relief desired, repudiate the action of the court at his whim and caprice.

5. A court, having no jurisdiction of the subject matter, may not proceed on the theory of coordinate or concurrent jurisdiction.

6. Whether a child custody order will be changed or modified rests in the sound judicial discretion of the district court and its action thereto will not be disturbed on appellate review unless the record makes it clearly appear its discretion has been abused.

7. The paramount concern of courts in every child custody proceeding is the welfare of the child.

8. In the interest of a minor child's welfare, a court of this state, when the child is physically present therein, has jurisdiction over his care, custody and control, although the court of a sister state has 'concurrent jurisdiction.'

9. An order awarding custody of a minor child in an action for divorce is res judicata only as to matters as they existed when the order was made, and, where the child is physically present in the state, does not bar later inquiry into the issue of custody when circumstances have changed.

10. A decree of a court of one state having jurisdiction relating to the custody of a minor child is, under the doctrine of comity prevailing among sister states, entitled to recognition in this state.

11. Full faith and credit has only limited application to a child custody decree; it is inherent in the nature of such a decree that it is not final and conclusive but is subject to the right of the parties to show a change of circumstances and conditions.

12. Courts of this state, by invoking the doctrine of 'clean hands,' will recognize and enforce a child custody decree of a sister state, without examination of its merits and regardless of a change of conditions, where there is misconduct or malfeasance on the part of the parent seeking such reexamination.

13. The 'clean hands' doctrine, as applied in a child custody case, is an equitable one, is not an absolute, and is to be applied or not applied at the court's discretion in each particular case.

14. The 'changed circumstances' rule does not permit a parent to go from one state to another relitigating issues which have been very recently resolved in another jurisdiction.

15. The records in two appeals involving the care and custody of the minor children of the parties, is examined, and, as more fully set forth in the opinion, it is held: The final divorce decree rendered by the Superior Court of Los Angeles County, California, on September 4, 1968, dissolved the marital relation between the parties and restored them to the status of single and unmarried persons, and is res judicata to the question of divorce in this state. It is further held: The Wyandotte district court erred in failing to sustain the husband's motion to dismiss the divorce action. It is further held: (a) There was substantial evidence to support the Johnson district court's finding that the wife unlawfully and forcibly detained the minor children in Johnson County in violation of the California custody decree; (b) it did not abuse its discretion in applying the doctrine of 'clean hands' to the conduct of the wife by enforcing the California custody decree without reexamination of its merits and regardless of alleged changed circumstances and conditions, and (c) it did not err in granting the writ of habeas corpus in favor of the husband.

James D. Howell, Sr., of Howell & Howell, Overland Park, argued the cause, and James D. Howell, Jr., Overland Park, was with him on the brief for appellant in appeal No. 45,597, and appellee in appeal No. 45,958.

John H. Fields, of Carson, Mahoney & Fields, Kansas City, argued the cause, and David W. Carson, Kansas City, was with him on the brief for appellee in appeal No. 45,957 and appellant in appeal No. 45,958.

FATZER, Justice.

These two appeals involve the care and custody of two little girls five and seven years of age. The appeal from Johnson district court (No. 45,958) was perfected by the mother, from the judgment granting the father's petition for a writ of habeas corpus for the custody and control of the two children. The appeal from Wyandotte district court (No. 45.957) was perfected by the father, from the judgment granting the mother a divorce and awarding the care and custody of the children to the mother.

The parties will be referred to be their given names, Sandra, the mother, and Daniel, the father. In referring to the district court judges, reference is made to the Honorable William J. Burns, judge of division No. 2 of the Wyandotte district court, as Judge Burns, and to the Honorable Raymond H. Carr, judge of division No. 3 of the Johnson district court, as Judge Carr.

Sandra and Daniel are young people in their twenties. Sandra was raised by her uncle and aunt, Mr. and Mrs. James C. Comte, 1954 North 28th Street, Kansas City, Kansas, who occupied the relationship of foster parents.

On September 3, 1960, Sandra and Daniel were married at Miami, Oklahoma. On March 22, 1962, a divorce was granted to Sandra from Daniel by the Circuit Court of Jackson County, Missouri. Later that same year, and on August 29, 1962, Sandra and Daniel were remarried in Kansas City Missouri. On November 8, 1962, their eldest daughter, Georgia, was born. Sixteen months later, and on March 15, 1964, their youngest daughter, Victoria, was born.

The parties continued to reside in Kansas City, Missouri, until October 2, 1965, when Sandra and Daniel separated. Daniel moved to California and secured employment. In November 1965, Sandra filed a divorce action against Daniel in the Circuit Court of Jackson County, Missouri, which she later dismissed. Shortly thereafter, Sandra and the two children moved into the Comte home in Wyandotte County. In February 1966, the Comtes took the two children to Daniel in California without notice to, or the consent of, Sandra.

On November 1, 1966, Daniel filed suit for divorce from Sandra in the Superior Court of Los Angeles County, California. Daniel's verified complaint alleged statistical facts that the parties were married September 3, 1960 (the parties' first marriage in Oklahoma), and were separated October 2, 1965. Two causes of action were alleged. The first, that Sandra willfully deserted and abandoned Daniel, and continued to live apart from him without just cause and against his will and without his consent. The second, that Sandra treated Daniel with extreme cruelty. The relief sought was that 'the bonds of matrimony heretofore and now existing between the parties be dissolved.' Further, that the care and custody of the two minor children be awarded to Deniel. Service of summons by publication was obtained on Sandra in California, and on January 13, 1967, she was personally served with a copy of the summons and divorce complaint at 615 W. 39th Terrace, in Jackson County, Missouri.

On February 27, 1967, Sandra wrote Daniel's lawyer in California concerning the divorce proceedings, stating:

'You are handling a divorce action for Daniel A. Perrenoud. It was filed November 1, 1966. I would lkie to know if this action is going throught, if so when it is to be completed? Or has your client dropped the case? It is most important that I know. Would you please reply?'

The letter was signed, 'Mrs. Daniel A. Perrenoud, 615 W. 39th St. Terr., Kansas City, Missouri.'

On March 3, 1967, an interlocutory judgment of divorce was granted Daniel by default, and the care and custody of the two minor children was granted to him with the right of reasonable visitation by Sandra. On that same day, March 3, 1967, Daniel's lawyer wrote Sandra advising her of the interlocutory divorce decree; that custody of the two minor children was awarded to Daniel, and that within one year Daniel would be able to obtain a final decree. Counsel warned Sandra against remarrying within the statutorily prohibited time and until a final decree was entered.

On April 15, 1967, and less than a month and a half after the interlocutory decree was granted by the California court, Sandra married Robert V. Brown. On May 27, 1967, a daughter was born to Sandra and brown.

During the summer months of 1966, 1967 and 1968, at the request of the Comtes and with Daniel's consent, the two children were returned to the Comte home in Kansas City and Sandra visited the children in the Comte home. At the end of the summer vacation each year the children were returned to Daniel in California.

On September 4, 1968, and upon Daniel's application, the California court entered a final judgment of divorce. The decree provided 'that plaintiff be and is granted a final judgment of divorce from defendant and that the bonds of matrimony between plaintiff and defendant be, and the same are, dissolved.' The final decree awarded custody and control of the minor children to Daniel with the right of visitation by...