Rankin, In re, 40850

• Decision Date: 14 August 1969
• Docket Number: No. 40850,40850
• Citation: 458 P.2d 176,76 Wn.2d 533
• Court: Washington Supreme Court
• Parties: In the Matter of the Application for Writ of Habeas Corpus for Gilbert Mitch RANKIN. Joe Luther RANKIN, Appellant, v. Joni Marie Rankin FERRITER, Respondent.

Page 533

76 Wn.2d 533

458 P.2d 176

In the Matter of the Application for Writ of Habeas Corpus

for Gilbert Mitch RANKIN.

Joe Luther RANKIN, Appellant, v. Joni Marie Rankin FERRITER, Respondent.

No. 40850.

Supreme Court of Washington, Department 2.

Aug. 14, 1969.

Milne & Peterson, K. D. Peterson, Ephrata, for appellant.

John R. Lewis, Moses Lake, for respondent.

ROSELLINI, Judge.

This is an appeal from the denial of a writ of habeas corpus, whereby the petitioner sought to obtain the custody of his son.

The history of the case is as follows: The respondent obtained a decree of divorce from the appellant in the courts of Nevada in April 1958. The parties were residents of California at the time the respondent was awarded custody of their only son, who was 2 years of age.

When the boy was 10 years old, and at a time when he and his mother were still residing in California, he was made a ward of the court; and the respondent was charged with neglect. She was suffering from a mental disorder at the time for which she underwent treatment and was eventually cured. Custody of the child was placed temporarily in the maternal grandparents, who reside in Grant County, Washington, and the California juvenile authorities sought the appellant, who had never paid child support, for the purpose of obtaining financial contributions for his support. The appellant was located and upon his application was given temporary custody of the boy.

While the boy was still a ward of the California juvenile court, the appellant petitioned the California court for modification of the Nevada decree. He attempted to serve the respondent by mail, but the attempt was abortive. In the meantime, in July 1968, the California juvenile authorities relinquished control and custody of the boy by an order which voided all prior orders in the matter.

During this time the respondent had remarried and moved to the state of Washington, where she established residence with her husband on a farm adjacent to that of her parents. After the California juvenile authorities relinquished custody of the boy, the respondent went to California and brought him back with her. This was accomplished on or about July 17, 1968. On August 1, 1968, the Alameda County court, in which the appellant had petitioned for modification of the Nevada decree, ordered republication of the summons in the modification matter, finding that the original publication had been defective.

The copy of the second summons which was mailed to the respondent was apparently received by her. She defaulted and the California court modified the divorce decree, placing custody of the boy in the father.

Armed with the order modifying the divorce decree, the appellant came to Grant County and petitioned for habeas corpus on behalf of his son. The respondent was ordered to appear and show cause why the writ should not issue.

Evidence was presented showing the above facts and also showing that the respondent had taken good care of the boy throughout his life, with the exception of the period when she was suffering from a mental illness; that the appellant had shown no interest in him until he was contacted with a demand that he pay support money; that the respondent's present husband is very fond of the boy and willing to provide a home for him; and that the boy prefers to live on the farm with his mother and stepfather.

The trial court found that the California court did not have jurisdiction over the boy because he was not domiciled in California when the second summons was published which, by that court's own ruling, was the first effective publication, and further found that the best interests of the boy required that he be placed in the custody of his mother.

The appellant maintains that the trial court should have given full faith and credit to the California court's judgment. We need not consider the merits of this contention, since the judgment of the trial court can be sustained upon its second finding.

The appellant concedes the rule to be that, while a court must give full faith and credit to a judgment of a sister state having jurisdiction of the parties and of the subject matter (In re Mullins, 26 Wash.2d 419, 174 P.2d 790 (1946)), it can modify such a decree as to the custody of a child, just as it can modify one of its own decrees, if the child is presently domiciled within the state. State ex rel. Marthens v. Superior Court for Jefferson County, 25 Wash.2d 125, 169 P.2d 626 (1946), is cited. As the appellant points out, it is said in that case that such a modification cannot be made in the asylum state without a showing of changed circumstances. It is the contention of the appellant that the time lapse between the signing of the California default judgment and the hearing on the petition for writ of habeas corpus was so brief that no charge of circumstances could possibly have occurred.

Without commenting on the correctness of this theory, we think that the court was entitled to make a finding concerning the welfare of the child and to modify the California judgment without finding that there had been a change in circumstances, the child being presently domiciled here. At the time the child was brought back to Washington by the respondent, she was legally entitled to his custody under the Nevada decree, the California juvenile authority having relinquished jurisdiction over him previously. The domicile of the child follows that of the parent having legal custody, provided the removal of the child is not prohibited in the decree awarding custody. Sanges v. Sanges, 44 Wash.2d 35, 265 P.2d 278 (1953).

It is true that in State ex rel. Marthens v. Superior Court for Jefferson County, Supra, we said that a change of...