Perry v. Perry
| Decision Date | 20 April 1982 |
| Docket Number | No. 4623-III-1,4623-III-1 |
| Citation | 31 Wn.App. 604,644 P.2d 142 |
| Parties | In re the Marriage of Janice P. PERRY, a/k/a Janice P. Shackleford, Appellant, v. Norman C. PERRY, Respondent. |
| Court | Washington Court of Appeals |
Deborah Perluss, Norman R. McNulty, Jr., Joseph Valente, Spokane Legal Services Center, Spokane, for appellant.
Norman C. Perry, pro se.
Kenneth O. Eikenberry, Atty. Gen., Jeffrey D. Stier, Asst. Atty. Gen., Spokane, for amicus curiae.
Petitioner, Janice Shackleford (the former Mrs. Perry), appeals from an order modifying a custody decree in a dissolution proceeding awarding custody of a minor child to the father, Norman Perry.
The primary issue is whether the superior court had the authority to proceed with the modification proceeding while a dependency action involving the child was pending in juvenile court.
The marriage between Janice Shackleford and Norman Perry was terminated by dissolution decree on May 1, 1975. Custody of their minor child, then about 2 years of age, was awarded to the mother with restricted visitation by the father-"only in the presence of a third party when respondent is sober".
On February 28, 1979, Mr. Perry moved for modification of the custody provisions of the decree, alleging a substantial change in circumstances and seeking custody of the child. An adequate cause hearing was set for March 8. Two days before this hearing, a dependency petition was filed in juvenile court by the Department of Social and Health Services. The superior court found adequate cause existed for the modification hearing, but ordered the hearing be continued for trial setting until after the juvenile court dependency matter was settled. On May 29, the child was adjudicated a dependent ward of the Spokane County Juvenile Court and on August 16 was placed in the physical custody of his father, Mr. Perry, pursuant to a juvenile court dispositional order. On January 29, 1980, the juvenile court commissioner entered an order which, according to Mrs. Shackleford's brief, stated:
Concurrent jurisdiction over this matter shall be transferred to the Civil Division of the Spokane County Superior Court in order that Norman C. Perry may proceed with his motion for modification of his decree of dissolution re: the custody of Mark Perry.
A motion to dismiss the modification proceeding for lack of jurisdiction was denied. The modification hearing resulted in an order entered October 17, 1980, changing custody of the child from Mrs. Shackleford to Mr. Perry. On November 13, Mrs. Shackleford filed an appeal from this order. On November 25, the juvenile court, according to Mrs. Shackleford's brief, terminated its jurisdiction over the minor child.
Mrs. Shackleford contends because the juvenile court has exclusive original jurisdiction over all proceedings relating to dependent children, it erroneously relinquished its jurisdiction to the superior court to proceed with the modification hearing and, therefore, the superior court did not have authority to modify the custody provisions of the decree. Mrs. Shackleford relies upon RCW 13.04.030. 1 We disagree. RCW 13.04.030 states:
The juvenile courts in the several counties of this state, shall have exclusive original jurisdiction over all proceedings:
(2) relating to children alleged or found to be dependent ...
(Italics ours.) Washington Constitution, article 4, section 6, provides:
The superior court shall have original jurisdiction ... of all matters ... of divorce, ... and of all proceedings in which jurisdiction shall not have been by law vested exclusively in some other court; ...
These enactments must be considered in light of RCW 26.09.180, which provides that child custody proceedings be commenced in superior court, and decided in accordance with the best interests of the child. RCW 26.09.190.
Under the predecessor to RCW 13.04.030, note 1, it was held that the legislature did not intend to establish a juvenile court separate and distinct from the superior court or purport to vest "exclusive jurisdiction" of dependent children in any forum other than the superior court. In re Dillenburg v. Maxwell, 70 Wash.2d 331, 413 P.2d 940 (1966), rehearing 70 Wash.2d 349, 422 P.2d 783 (1967). In State ex rel. Walker v. Superior Court for King County, 43 Wash.2d 710, 714, 263 P.2d 956 (1953), the court elaborated upon the relationship between the juvenile and superior courts. There, a divorce occurred at a time when the parties' two children had been declared dependent and were wards of the juvenile court. The superior court declined to decide custody in the divorce action, except to state that the children would remain in the custody of the juvenile court until further order of that court. The court, in Walker, supra, on appeal from a disposition by the juvenile court, stated, at page 714, 263 P.2d 956:
(I)n view of the circumstances apparently facing the divorce court at the time of the Walker divorce decree, any order it might have made would have been a conditional one, pending or subject to termination of the dependency status of the children. Furthermore, such order of the divorce court awarding custody to one parent would necessarily have been based upon circumstances existing at the time of the order. Such circumstances, conceivably, might change significantly with the passage of time before termination of the status of dependency. Considering these aspects of the problem, it might be argued fairly convincingly that, in the case at bar, the divorce court followed the better practice in not deciding the matter of permanent custody as an abstract legal question between the parents, in not entering an effectual, futile order, and in postponing any decision as to custody (other than the order actually made by the court) until after termination of the dependency status of the children, at which time a decision by the divorce court would be effective and considerably more realistic.
(Italics ours.) It was in the background of Walker and other similar...
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