Quenzer v. Quenzer

• Decision Date: 29 October 1982
• Docket Number: No. 5680,5680
• Citation: 653 P.2d 295
• Parties: Fred A. QUENZER, Appellant (Defendant), v. Nola Kathleen (QUENZER), Appellee (Plaintiff).
• Court: Wyoming Supreme Court

Page 295

653 P.2d 295

Fred A. QUENZER, Appellant (Defendant), v. Nola Kathleen (QUENZER), Appellee (Plaintiff).

No. 5680.

Supreme Court of Wyoming.

Oct. 29, 1982.

Rehearing Denied Nov. 17, 1982.

Donald J. Sullivan, Cheyenne, for appellant.

W.H.C. Venable, Jackson, and Lea Jacobs, Jackson, for appellee.

Before ROSE, C.J., and RAPER, THOMAS, ROONEY and BROWN, JJ.

THOMAS, Justice.

The task confronting our court in this case is that of reconciling, in the context of the power to enter a judgment modifying a child-custody decree, the laws of the State of Texas, the State of Wyoming, and the United States of America. The question of custody of the parties' daughter is before the courts for the fourth time in seven years with each proceeding except this one being instituted by the father. A district court in Texas entered an Order of Modification in Suit Affecting Parent-Child Relationship, modifying the child-custody provisions of an Order entered in a circuit court of the State of Oregon essentially by awarding custody of the child to the father. The circuit court in Oregon had entered a judgment essentially confirming the child-custody provisions, but modifying the visitation provisions, of a Decree of Divorce which had been entered by the Court of Domestic Relations in Texas, and which had awarded primary custody of the child to the mother. Thereafter, the district court in Wyoming entered its Order modifying the Texas modification order by restoring primary custody to the mother. The district court in Wyoming, while denigrating the authority of the Texas court to enter a modification order, essentially relied upon its own authority to modify the provisions relating to the custody of the child based upon a change in circumstances. This appeal is by the father from the Order entered by the district court in Wyoming, which not only modified the custody provisions of the order entered by the Texas district court, but also imposed personal judgments upon the father. Having satisfied ourselves of the jurisdiction of the district court in Wyoming to enter its Order, we shall affirm the district court.

The appellant, Fred August Quenzer, Jr., and the appellee, Nola Kathleen Quenzer (now Sharrard), were divorced in Texas in 1975. Primary custody of the parties' daughter was awarded to the mother pursuant to the Decree of Divorce which followed the provisions of a Property Settlement Agreement previously entered into by the parties. Not long after the divorce the mother removed herself from Texas with the result that the father could not exercise weekend visitation rights as provided for in the Decree of Divorce. The response of the father was to refuse to return the child after a visit in Texas in June of 1976, and the mother had to return to Texas and prosecute a habeas corpus proceeding to secure the daughter's return to her custody. She was successful in that endeavor.

In August of 1977 the father petitioned the circuit court in Oregon to enforce the visitation provisions of the Texas decree in accordance with Oregon's adoption of the Uniform Child Custody Jurisdiction Act. A cross-petition by the mother sought modification of the Texas decree and also arrearages in child and spousal support payments, and an increase in the amount of monthly child support. Other relief also was requested. The father then filed a motion for a change in custody of the daughter. In so doing the father conceded that the Texas court did not have continuing jurisdiction to determine custody issues. Essentially the Oregon decree continued custody in the mother; held the mother in contempt for failing to comply with the visitation provisions of the Texas decree; modified the visitation provisions of the Texas decree so as to require the father to post a $1000 bond to guarantee the return of the daughter at the conclusion of court-ordered visitation and changing the times and duration of the father's visitation privileges; granted judgment for arrearages in child and spousal support against the father; found the father in contempt for willful failure to comply with the child and spousal support provisions of the decree; and denied the mother's motions for increased child support and payment of attorneys fees and costs. Although appealed, that judgment was affirmed by the Oregon Court of Appeals.

Following the entry of the order in the circuit court in Oregon, the mother moved to Eugene, Oregon, and then spent the summer of 1979 traveling in Hawaii, staying there with friends. In August of 1979 the mother married her present husband and the mother, daughter and the stepfather moved to Dillingham, Alaska, where they remained until January of 1980. From Dillingham they moved to a smaller native village of Aleknagnik, where they remained until June of 1980. In June of 1980 the daughter was sent to visit in Texas. The father was entitled to custody for a six-week period starting on the second Sunday of June of each year. During the period of this visit the mother and her husband moved from Alaska to Teton County, Wyoming, where they intended to establish a permanent residence. On July 8, 1980, which was less than a week before the scheduled visitation in Texas was to end, the father filed a motion in the Texas district court, seeking a modification in custody of the child. Process was served upon the mother in Eugene, Oregon, where she was visiting prior to returning to Wyoming.

Thereafter the mother instituted a separate habeas corpus proceeding in the Texas court, seeking enforcement of the Oregon decree returning the child to her custody. The return to her custody was ordered by the Texas court, and on August 16, 1980, the mother and daughter left Texas, and since that time they have resided in Wyoming. The order formalizing the judgment of the court was entered on October 8, 1980. In the meantime the modification proceeding had been held in abeyance pending a determination of the status of the mother, who had attempted to appear specially. The Texas court, by the same judge who had heard the habeas corpus proceeding, entered an order denying the mother's special appearance and ordering the case to proceed to trial on the merits. Thereafter, in January of 1981, trial was held with respect to the proceeding seeking modification of custody. On January 12, 1981, an The proceeding in Wyoming was commenced on February 23, 1981. The Order in the Wyoming proceeding was signed on February 22, 1982, and entered on March 2, 1982. The Wyoming court found that it had jurisdiction under the Wyoming version of the Uniform Child Custody Jurisdiction Act; that the mother was the proper person to have custody of the child; and that the circumstances before the court showed that any orders of any court in the past should be modified, because of a change in circumstances, to give the mother custody of the child. While critical of the Texas proceeding, the Wyoming district court premised its authority upon the existence of jurisdiction pursuant to Wyoming statute, and it did proceed to modify the Texas modification order by restoring permanent custody to the mother; denying visitation rights in the father "at the present time unless substantial safeguards are erected in that regard"; requiring the payment of past due child support and past due spousal support; and ordering that the father should pay for attorneys fees and costs in connection with litigation of the matter. The father has appealed from this order.

Order of Modification in Suit Affecting Parent-Child Relationship was entered in Texas in which the court held that custody should be given to the father with visitation rights to the mother. January 26, 1981, was specified as the date for transferring possession of the child, and the Texas court did enter findings that it had jurisdiction and that the mother had not been a continuous domiciliary or resident of any state for six months preceding the filing of this action. It further found that no other court had or has continuing jurisdiction of the suit or of the daughter and that it had jurisdiction of the child because it was the most convenient forum to determine the best interest of the child.

The father, in his brief, states the issues in this appeal as follows:

"1. Whether the trial court erred in exercising jurisdiction in the child custody modification proceeding.

"2. Whether the trial court erred in denying full faith and credit to the existing Texas custody decree.

"3. Whether the trial court erred in exercising in personam jurisdiction over Appellant.

"4. Whether the trial court denied Appellant due process of law and abused its discretion."

No separate statement of the issues is made on the part of the mother, who contended herself with addressing the issues as presented by the appellant.

We shall proceed to deal initially with the second issue asserted by the father. The father urges in support of his position the requirements of the Full Faith and Credit Clause of the Constitution of the United States of America. The Constitution provides in Art. IV, § 1, as follows:

"Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."

Cases from the Supreme Court of the United States, however, have taught that the finality of a custody determination under the Full Faith and Credit Clause depends on whether the court originally making the custody determination retained the power under its own laws subsequently to modify its original order. In People of State of New York ex rel. Halvey v. Halvey, 330 U.S. 610, 614, 67 S.Ct. 903, 905, 91 L.Ed. 1133 (1947), the court stated:

"So far as the Full Faith and Credit Clause is concerned, what Florida [the original divorce jurisdiction] could do in modifying the decree, New York [the...