Schaeffer v. Schaeffer, 39157

• Decision Date: 23 January 1954
• Docket Number: No. 39157,39157
• Citation: 175 Kan. 629,266 P.2d 282
• Parties: SCHAEFFER v. SCHAEFFER.
• Court: Kansas Supreme Court

Page 282

266 P.2d 282

175 Kan. 629

SCHAEFFER v. SCHAEFFER.

No. 39157.

Supreme Court of Kansas.

Jan. 23, 1954.

Syllabus by the Court.

1. Under the provisions of G.S.1949, 60-1502, one full year actual residence in good faith in the state, or one full year residence on any United States army post or military reservation within the state, is a prerequisite to the conferring of jurisdiction upon the district court in a divorce action.

2. The general rule is that when a court of competent jurisdiction acquires jurisdiction of the subject matter and of the parties, its jurisdiction continues as to all matters therein involved until the issues are finally disposed of, and no court of coordinate jurisdiction should interfere with its action.

3. Subsequent to the filing of a petition for divorce, where it is found the court was without jurisdiction, due to the residence requirement of G.S.1949, 60-1502, an amended petition stating a new cause of action for separate maintenance will not relate back to the filing of the divorce action so as to confer jurisdiction on the court as of that date, nor can the amendment exclude jurisdiction of a coordinate court obtained in the interim.

4. In the instant case where it is found that the court was without jurisdiction in the divorce action, any order issued by the court is void, and any proceeding in contempt for violation of any such order is ineffectual.

D. E. Watson, Salina, on the briefs for appellant.

No appearance was made for the appellee.

WERTZ, Justice.

This was an action for divorce, alimony, custody and support for minor child, and attorney fees. From adverse rulings of the Dickinson county district court, hereinafter referred to, defendant appeals. Appellee (wife) will be referred to as plaintiff, and appellant (husband) as defendant.

Plaintiff, Phyllis A. Schaeffer, alleged in her petition, filed in Dickinson county April 3, 1953, that she was and had been for more than one year last past, an actual resident in good faith of that county. She asked for a divorce on statutory grounds, custody of the minor child of the parties, alimony and child support. On the same day she caused summons to be issued to the defendant, Robert B. Schaeffer, at his residence in Saline county, and secured from the judge of the probate court, in absence of the judge of the district court, G.S.1949, 60-1507, an ex parte order giving her the custody and control of the minor child, and enjoining defendant from coming to plaintiff's residence or molesting or interfering with her or the minor child during the pendency of the action. The summons and a copy of the mentioned order were served on defendant in Saline county, April 7, 1953.

On April 11, 1953 defendant, a member of the United States Air Force stationed at Salina, Kansas, filed a petition for divorce in the district court of Saline county alleging that he was, at the time of filing his petition and for more than one year prior thereto, a resident of Kansas. He asked for a divorce on statutory grounds, custody of the minor child and division of the property between the parties. On the same day he caused summons to be issued to the mentioned plaintiff at her residence in Dickinson county, and secured an order from the Saline district court awarding him the temporary care, custody and control of their minor child. The summons and a copy of the mentioned order were served on plaintiff in this appeal, and defendant in that action, on April 13, 1953, and custody of the child was turned over to defendant (husband) in this action.

On the same day (April 13, 1953), defendant herein appeared specially in the Dickinson district court and filed a motion to quash the service of summons and to vacate and set aside the ex parte order made by that court on April 3, 1953. By this motion defendant challenged the jurisdiction of that court on the ground plaintiff had not been a resident of Kansas for one year next preceding the filing of her petition, April 3, 1953.

On the same day (April 13, 1953) plaintiff filed a petition for citation in the same court alleging that on April 11, 1953, the defendant removed or caused to be removed from custody of plaintiff the minor child, thereby violating the order of the Dickinson district court of April 3, 1953. The result of this petition was an order from the Dickinson court directing defendant to appear and show cause why he should not be punished for contempt of that court.

On April 21, 1953, the defendant again appearing specially, filed a motion to strike from the files to set aside the order and to quash plaintiff's petition and the citation, again challenging the jurisdiction of the Dickinson court.

On the same day, evidence was introduced at the hearing on defendant's motion to quash and strike, which established that the parties did not arrive in Kansas until April 5, 1952. Apparently following this hearing and before the court ruled on the motion and on the same day the Dickinson court permitted plaintiff to file an amended petition, changing her cause of action from that of divorce to separate maintenance. At the conclusion of this hearing the Dickinson district court found:

'that the Plaintiff's amendment to her Petition, making said Petition an action for separate maintenance, renders the question of the jurisdiction of this Court on the grounds set forth in the foregoing Motion moot, since this Court finds that residence for one (1) year prior to filing the Petition in a cause for separate maintenance is not required by the Statutes of Kansas, and the Court orders that both of the aforementioned Motions be overruled.'

and made the following order:

'Whereupon, it is shown to the Court and the Court finds that the Order of this Court, dated the 3rd day of April, 1953, and made by John P. Dieter, Probate Judge of Dickinson County, Kansas, in the absence of the Judge of the District Court of the Eighth Judicial District, is a valid and binding order entered by this Court to maintain the status quo in this action relative to the matters therein contained, pending final disposition of this cause, and the Court further finds that the violation of this order constitutes a contempt of this Court.'

and ordered the defendant's motion to quash and dismiss and to strike, overruled, apparently on the theory the amended petition related back to the filing of the original petition, and that all orders previously made were effective. The Dickinson court further ordered plaintiff to file an accusation and set the time for hearing and answer by defendant.

Plaintiff filed her accusation. Defendant filed his motion to strike the same from the files, again raising the jurisdictional question as before, at the same time informing the Dickinson court that another action was pending for divorce between the same parties upon the same subject matter in the district court of Saline county, and that that action had been filed by the defendant on April 11, 1953, and that service of summons had been had upon the plaintiff (wife), and informed the court that defendant (husband) had appealed from the court's order of April 21 to the supreme court of the state of Kansas, and that such appeal was then pending.

However, on April 28, the court heard plaintiff's evidence on her accusation and found defendant guilty of comtempt of court, in that he willfully refused to obey and had violated the order of the court entered on April 3, 1953, and sentenced defendant to serve a term in the county jail, or until he purged himself of contempt by returning the child to the plaintiff.

From the rulings of the Dickinson district court, adverse to the defendant as above related, he appeals.

Defendant contends that in order to determine whether the court erred in finding him guilty of contempt and in sentencing him to serve a period in the county jail, it is first...