Petition of Giblin
| Decision Date | 18 July 1975 |
| Docket Number | No. 45274,45274 |
| Parties | In re Petition of Michelle GIBLIN to Release Patrick Shawn, Paul Kelley and Shannon Lee Giblin. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
1. A petition for writ of prohibition is an appropriate procedural device by which to seek appellate consideration of the trial court's exercise of jurisdiction.
2. The question of jurisdiction is remanded to the district court for reconsideration in the light of the Uniform Child Custody Jurisdiction Act, the principles and provisions of which should be applied by the district court in making its determination.
3. Under the circumstances in this case, where respondent was proceeding in forma pauperis, the lower court did not exceed its authority by failing to require that she furnish security prior to receiving equitable relief.
James W. Hoolihan, St. Cloud, for petitioner.
James P. Cullen and Melvin B. Goldberg, Thomas G. Rowe, Mary Wahlstrand, and Cort C. Holten, Legal Assistance to Minn. Prisoners, Minneapolis, for respondent.
Considered and decided by the court en banc.
Petition for writ of prohibition commanding the Stearns County District Court to refrain from continuing, enforcing, or invoking any present or further equitable relief in favor of respondent, Michelle Giblin divorced mother of the children whose custody is contested, and against petitioner, Paul Giblin, the divorced father, who was awarded temporary custody by an Illinois circuit court order.
The gist of the problem is this: A Minnesota court has acted, and continues to act through its injunctive order, and proposes to act further, so as to render ineffective an outstanding order of another state's tribunal. We are asked to consider what effect the courts of this state should give to the foreign custody order. The lower court, in a proceeding initiated by respondent to obtain the children's custody through a writ of habeas corpus and to obtain an injunction to prevent petitioner from removing them from this state and from her control, determined that the State of Illinois lacked jurisdiction to affect custody and that Minnesota was in no way bound by Illinois' improper assertion of power. We issued an alternative writ of prohibition commanding the district court to refrain from further proceedings until the further order of this court. For reasons appearing below, the alternative writ is discharged.
Petitioner and respondent are the natural parents of Patrick Shawn, age 10, Paul Kelley, age 7, and Shannon Lee, age 5. The parents were married in Illinois May 29, 1962, and divorced there on September 10, 1971. Custody originally was awarded to respondent; petitioner received substantial visitation rights. The divorce court found both parents to be fit and proper. 1
In March 1972, the 1971 decree was modified by an Illinois court to permit respondent to take the children out of Illinois to Minnesota for an indefinite period of time. Petitioner opposed the modification and sought a change of custody. Although unsuccessful, petitioner was granted extensive visitation rights, to wit: Once every 2 months in Minnesota, the last 2 weeks of July and the first 4 weeks of August each summer in Illinois, and during Christmas recess in Illinois. Respondent was required to bring the children to Illinois and petitioner, to return them to Minnesota.
Respondent, who without contest claims a Minnesota domicile, has resided continuously in Stearns County since March 1972 and the children have been enrolled in various public schools in that area. Their maternal grandparents also live in Stearns County.
On May 3, 1974, respondent entered a guilty plea in Stearns County District Court to wrongfully obtaining public assistance. The court sentenced her to the commissioner of corrections for a term of 0 to 5 years and recommended that she be placed in the property offender program at the Correctional Institution for Women in Shakopee. Confinement began on May 6; she was paroled July 29, two weeks after the Stearns County habeas corpus and injunction proceedings. At the time of those proceedings, respondent's release date was unknown.
On or about the date of respondent's sentencing, she requested that petitioner come to Minnesota to take all the children back to Illinois. By May 23, petitioner had done so. Respondent asserts, however, that petitioner agreed he would exercise his 6-week visitation rights as soon as possible and that petitioner came to Minnesota for that purpose only. Furthermore, respondent alleges that petitioner was to return the children to her control by June 13, which he did not do. Respondent demanded their return on June 18. Petitioner contends, on the contrary, that respondent asked petitioner to pick up the oldest child on May 3 and the other children on May 23. He was to keep them in Illinois for the indefinite term of her prison confinement. The trial court made no findings resolving the conflicting claims on this issue.
With the children under his control in Illinois, on June 19, petitioner sought relief from the terms of the extant Illinois custody provisions by petitioning the Circuit Court for DuPage County, Illinois, for modification of those terms. Respondent received notice of the Illinois hearing and appeared there on July 1. The exact nature and legal consequences of the Illinois hearing and the circumstances attending it are also matters of dispute.
Respondent and her Illinois counsel stipulated to the provisions of an order, issued by the Illinois court on July 1, which essentially granted temporary custody to petitioner; additionally, respondent made a general appearance without contesting the Illinois court's power to act.
Among other things, the July 1 order provided that the children remain with petitioner in Illinois until further order of that court. With respect to the ultimate custody of the children, the court's order makes apparent the Illinois court's concern about respondent's incarceration and her activities preceding it. The court ordered that a copy of the presentence investigation report relating to respondent be furnished and also ordered an investigation of the father for the express purpose of aiding the court in determining the question of custody. A final hearing was set for August 12.
The order allowed petitioner to take the children to Minnesota for a vacation from July 10 to 22. Respondent was granted visitation privileges from 9 a.m. July 11 to 6 p.m. July 12. 2 Petitioner complied with the Illinois order, leaving the children with respondent at the Shakopee Women's Prison and apparently agreeing to pick them up at 6 p.m. the next day at respondent's parents' home in Sartell.
On July 10, however, and proceeding in forma pauperis, respondent instituted the habeas corpus and injunction proceeding in the Stearns County District Court, and also sought a temporary restraining order. Judge Charles Kennedy restrained petitioner from removing the children from Stearns County or from respondent's control, from harassing or intimidating respondent or her children, friends, or relatives, or from otherwise interfering with respondent's care, control, or custody of the children. When petitioner appeared in Sartell at the appointed hour, he was served with the restraining order, the petition for a writ of habeas corpus and injunctive relief, and the writ.
On July 13, petitioner responded before Judge Paul Hoffman by moving to quash and by petitioning for his own writ of habeas corpus. Oral argument was heard on July 17, at which time Judge Hoffman in substance directed that the temporary restraining order be made a temporary injunction. Without taking testimony and proceeding only on affidavits, the trial court determined that the Illinois court had lacked jurisdiction to affect the custody of the Giblin children and that Minnesota had such jurisdiction. In effect, custody was left in respondent or her agents with limited visitation privileges, since expired, in petitioner. The trial court specifically did not pass on the fitness of either parent. The habeas corpus proceedings were terminated.
On July 30, petitioner sought a writ of prohibition from this court. On July 29, respondent was paroled to her Stearns County residence where she now resides with the children. Subsequent proceedings in Illinois, at which respondent did not appear, resulted in a court order issued in August 1974 granting petitioner permanent custody of the children. On September 26, 1974, our alternative writ issued.
These issues are presented: (1) Whether a petition for writ of prohibition is an appropriate procedural device by which to seek appellate consideration of the main issue raised; (2) whether the lower court failed to give proper effect to the order of the Illinois trial court and by so doing, overstepped and abused its powers; (3) whether the lower court exceeded its authority by failing to require that respondent furnish security prior to receiving equitable relief when respondent was proceeding in forma pauperis.
1. It is clear that a petition for a writ of prohibition is a proper procedural vehicle to present questions relating to jurisdiction. 3 In this case, the district court had jurisdiction; thus, the crux of the problem is, whether, having that jurisdiction, the trial court exceeded the bounds of its proper exercise or otherwise abused it by not giving effect to the foreign custody order. 4
2. We are not here prepared to say whether the trial court took a correct view of the Illinois order of July 1. Instead, we prefer to remand the question of jurisdiction to the district court for treatment in light of the principles hereinafter enunciated. If that court concludes under the guidelines of this opinion that it need not give effect to the Illinois court order and it is asked to determine which parent should have custody, the district court then should make that...
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