Rhoades v. Bohn
| Decision Date | 08 September 1959 |
| Docket Number | No. B-32,B-32 |
| Parties | D. Kathleen Bohn RHOADES, Appellant, v. David E. BOHN, Appellee. |
| Court | Florida District Court of Appeals |
Geffs, Geffs, Block & Geffs, Janesville, Wis., and J. Donald Bruce, Jacksonville, for appellant.
Rogers, Towers, Bailey & Jones, Jacksonville, for appellee.
Appellant, plaintiff in the trial court, seeks review of a final judgment discharging a writ of habeas corpus and dismissing her petition by which she sought the custody and control of her minor child.
The parties to this cause are the natural parents of Patricia Kay Bohn, who was born on August 12, 1947. They were married and resided together in the State of Wisconsin as husband and wife until 1951 when plaintiff instituted a suit for divorce against defendant. During the course of that proceeding the parties stipulated and the court decreed that plaintiff mother be awarded custody of the child subject to visitation privileges granted defendant father. The final decree of divorce incorporating the foregoing custody provision was entered on November 8, 1951, but contained no express provision reserving jurisdiction to modify or change the award of custody. We pause to observe that whether jurisdiction was expressly reserved is immaterial insofar as concerns the court's jurisdiction to enter an amendatory custody order in a proper supplementary proceeding. 1
Defendant remarried on April 24, 1953, and thereafter continued to reside in Wisconsin. On September 16, 1953, plaintiff and defendant entered into a new stipulation by which it was agreed that the future custody of the child be awarded defendant. This stipulation was recognized by the Wisconsin Court which entered an amendatory decree awarding custody of the child to defendant until further order of the court, with visitation privileges granted plaintiff and her parents. The order contained no restrictions prohibiting removal of the child from the State of Wisconsin.
On October 6, 1954, defendant's business required that he move his domicile to Jacksonville Beach, Florida, where he established a home to which he brought his wife and child. Plaintiff immediately learned that defendant and the child had moved their residence to Jacksonville Beach, but took no steps to enforce any custodial or visitation rights she may have had to the child until three and one-half years later.
On November 29, 1957, plaintiff petitioned the Wisconsin Court for an order awarding her custody of the child who was then over ten years of age. Defendant was served with notice of this proceeding by mail in accordance with the statutes of Wisconsin. At that time both defendant and the child had continuously resided in Florida for more than three and one-half years and neither of whom was then physically present within the territorial jurisdiction of the Wisconsin Court. Defendant employed an attorney who appeared specially in the proceeding for the sole purpose of challenging the Wisconsin Court's jurisdiction over the person of defendant and the subject matter of the cause. Upon denial of his objection to the court's jurisdiction, defendant's attorney withdrew and declined to participate further in the cause.
Evidence offered by plaintiff consisted almost entirely of proof tending to establish that she was a fit and proper person to have the custody of her child. No proof was adduced touching the general welfare, condition of health or home environment of the child nor of the opportunities being then provided by defendant for her social, educational, religious and cultural development. Upon the evidence thus submitted, the Wisconsin Court entered an amended decree awarding custody of the child to plaintiff.
Armed with the Wisconsin decree, plaintiff came to Florida and instituted the present action in the Circuit Court of Duval County by which she prayed that the mentioned decree be accorded full faith and credit and by writ of habeas corpus the defendant be required to deliver physical possession and custody of the child to her. By his order of dismissal the trial judge held that the Wisconsin decree was not entitled to enforcement in Florida under the full faith and credit doctrine for the two fold reason that (1) since the child had not been physically present within the jurisdiction of the Wisconsin Court for three years prior or at any time subsequent to the institution of the latest custody proceeding, that court did not have jurisdiction over the subject matter of the cause, and (2) the best interest of the child was not litigated in a truly adversary manner nor was any competent evidence before the court relating to the welfare of the child.
We shall first consider the question of whether the last amended decree entered by the Wisconsin Court awarding custody of the child to plaintiff mother is void for the reason that the child and its father in whose custody the child had been legally placed were not physically present within the territorial jurisdiction of the Wisconsin Court at the time of the commencement of the proceeding or any time thereafter. The landmark case in Florida on this question is that of Dorman v. Friendly. 2 In that case the Circuit Court of Duval County initially passed upon the question concerning custody of the children there involved. In the original decree custody of the children was awarded to the mother who subsequently moved her residence and domicile to Virginia. The father, who was a party to that cause, later petitioned the Circuit Court of Duval County for an order modifying the final decree and awarding him custody of the children. The mother challenged the court's jurisdiction to amend the custody decree on the ground that neither she nor the children were then domiciled in or residents of Florida, and the court was therefore without jurisdiction to enter any order touching the custody of the children. From an adverse decree the wife appealed. In reversing the trial court the Supreme Court observed that neither the children nor their mother were within the territorial jurisdiction of the Florida court at any time during the proceeding to modify the custody decree. It held that a court must not only have a jurisdiction of the parties but it must have jurisdiction of the subject matter also. The subject matter involved in the question of custody of minor children is the children themselves, and if the court has not jurisdiction of the children, it has not jurisdiction of the subject matter to determine the right of custody as between the parties to the suit over which it may have jurisdiction.
With the single exception hereafter noted, the rule in Dorman has been consistently adhered to by the Courts of Florida, the last expression of the rule being stated in the Galen case decided only last year. 3
Through a process of judicial development the rule first enunciated in Dorman has been extended to apply both to original proceedings initially fixing custody of minors, 4 as well as to supplementary proceedings seeking to modify a prior custody order. 5
From the foregoing principles heretofore established as the law of this state it would follow that the custody proceeding instituted by plaintiff in the Wisconsin Court for a decree amending the prior custody order was commenced at a time when both the defendant and the child were residing and legally domiciled in the State of Florida. The Wisconsin Court acquired jurisdiction over the defendant who, according to the record, received actual notice of the pendency of that proceeding. Such notice was held to be sufficient under the law of Wisconsin, just as it is sufficient under the law of Florida. 6 However, under the rule in Dorman the Wisconsin Court did not acquire jurisdiction over the subject matter of the cause, the child. In this class of cases it has been held that jurisdiction connotes something more than process upon those who have custody of the minor. The minor is the res, and the principle has been stated that without its presence within the territorial jurisdiction of the court, its judgment cannot be enforced and is a nullity. 7
The only recognized exception to the foregoing rule is in those instances where the party having custody of the minor voluntarily submits to the court's jurisdiction and litigates in an adversary manner the merits of the issue on which a decree of custody depends. Under these circumstances Florida will recognize and enforce a custody decree of a foreign state although the minor was neither domiciled nor physically present in the foreign state at any time during the course of the proceeding. 8
Appellant contends that the rule in Dorman has no application to the facts in this case and should not control the decision. She urges that since the question of the Wisconsin Court's jurisdiction to enter the amended custody order was raised in that proceeding and ruled upon by the court in favor of its jurisdiction, the ruling is res judicata and cannot again be raised or litigated by defendant in the Florida habeas corpus proceeding. In support of this position appellant cites the Haas decision in which it is held that while a Florida court is not required to recognize the judgment of another state where the judgment was rendered by a court without jurisdiction, or where it has been obtained by extrinsic fraud, this rule is subject to the limitation that if the court of the state which rendered the judgment has expressly litigated the jurisdictional question or the matter of fraud, that determination becomes res judicata on those points and is itself protected by the full faith and credit clause of the Constitution of the United States. The jurisdictional and fraud questions cannot be relitigated a second time in another state. 9
At first blush it would appear that the Haas decision favors the position taken by appellant, but careful analysis leads us to a contrary...
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...of jurisdictions have held unequivocally that child custody decrees are not entitled to full faith and credit. Rhoades v. Bohn, 114 So.2d 493 (Fla.Dist.Ct.App.1959), aff'd, 121 So.2d 777 (Fla.Sup.Ct.1960); Application of Burns, 49 Haw. 20, 407 P.2d 885 (Sup.Ct.1965); In re Miracle, 208 Kan.......
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