Scheer v. District Court In and For City and County of Denver

• Decision Date: 17 July 1961
• Docket Number: No. 19744,19744
• Citation: 147 Colo. 265,363 P.2d 1059
• Parties: Richard J. SCHEER, Petitioner, v. DISTRICT COURT IN AND FOR the CITY AND COUNTY OF DENVER and State of Colorado, and The Honorable Mitchel B. Johns, Judge of said Court, Respondents.
• Court: Colorado Supreme Court

Page 1059

363 P.2d 1059

147 Colo. 265

Richard J. SCHEER, Petitioner, v. DISTRICT COURT IN AND FOR the CITY AND COUNTY OF DENVER and State of Colorado, and The Honorable Mitchel B Johns, Judge of said Court, Respondents.

No. 19744.

Supreme Court of Colorado, En Banc.

July 17, 1961.

Fred J. Pferdesteller, Fred W. Vondy, Denver, for petitioner.

Bert M. Keating, Dist. Atty. Dorothy E. Binder, Deputy Dist. Atty., Denver, for respondents.

DOYLE, Justice.

This is an original proceeding in prohibition in which petitioner demands that the district court be enjoined from entertaining a case which arose under the Reciprocal Support Act ('53, C.R.S., 43-2-1 to 43-2-16). The essential theory upon which the relief is sought is that the district court of Adams County had previously assumed jurisdiction of a divorce action instituted by petitioner and that it thereby acquired exclusive jurisdiction over the questions of support and custody of the children.

The facts in the record show that Barbara J. Scheer and the petitioner had been married; there are two sons of the marriage; a third, a son of Mrs. Scheer from a former marriage, has been adopted by petitioner. On August 20, 1958, Mrs Scheer filed a separate maintenance action in the District Court of Denver. A few days after this filing and the obtaining of a restraining order Mrs. Scheer moved to the home of her mother in Clark County, Nevada, taking the three children with her. This separate maintenance suit was ultimately dismissed for failure to prosecute. Meanwhile, on February 13, 1959, petitioner commenced a divorce action in Adams County. The prayer of the divorce complaint makes no mention of either custody or support of the children. It seeks a manadatory order requiring Mrs. Scheer to return the children to Colorado. Subsequent service on Mrs. Scheer was made in Clark County, Nevada, and on August 28, 1959, a decree was entered granting petitioner herein a divorce and dividing the Colorado property. This further provision appears in the decree:

'It is Further Ordered that the issue involving support and custody of the minor children of the parties hereto will be held in abeyance until they are returned to the State of Colorado by the defendant.'

The instant support action was commenced in May of 1959 in Nevada and was docketed in the Denver District Court in June of 1959, under the Reciprocal Support Act. It alleges that the dependent children need some $150 per month for their support.

Petitioner was served with the documents in this latter case and he filed a motion to dismiss. This motion was denied and was later reconsidered but was again denied. The case was then set for trial, but a continuance was granted to permit petitioner to institute the present proceedings. Petitioner claims that he is entitled to the extroardinary relief of prohibition by reason of the fact that child support was within the exclusive jurisdiction of the district court of Adams County. He argues that once the divorce action was instituted the court acquired jurisdiction to the exclusion of other courts of the support and custody issues; that litigation of the support issue as it is now raised would interfere with the exercise of jurisdiction by the district court of Adams County.

Respondents argue that the district court of Adams County acquired no jurisdiction over the children in this case and that it is not now empowered and was not empowered at the time of the divorce to decree custody. It is further stated that, assuming that the Adams County district court had jurisdiction, nevertheless there is no conflict because support of minor children can be litigated in courts other than the court in which the divorce is granted and by means of remedies other than the statutory remedy corollary to the divorce action. It is further said that no jurisdictional question is presented and that consequently prohibition is not a proper remedy.

The limited question for our determination is whether the jurisdiction of the district court of Adams County, arising from the filing and disposition of the divorce action, precludes the district court of the City and County of Denver from proceeding pursuant to the Reciprocal Support Act.

Preliminary to determination of the propriety of the present writ, we consider whether the district court of Adams County acquired jurisdiction over support and custody of the minor children involved to the exclusion of other remedies and courts. One clear obstacle to the exclusive jurisdiction idea is that the district court of Adams County could not acquire exclusive jurisdiction over custody of minor children residing in a foreign jurisdiction. See People ex rel. Wagner v. Torrence, 94 Colo. 47, 27 P.2d 1038, recognizing the principle that a custody award entered by one court is not binding on courts of another state under the full faith and credit clause of the federal constitution after the child has become domiciled in the latter state; that when a child's domicile is changed he is no longer subject to the control of the court which first awarded his custody. It is clear, of course, that a child's domicile is that of the parent with whom it lives. See Lyons v. Egan, 110 Colo. 227, 132 P.2d 794. Note also that the recitation contained in the Adams County Divorce decree is not conclusive on the question whether Adams County had jurisdiction. Koscove v. Koscove, 113 Colo. 317, 156 P.2d 696.

We agree also with the respondents' contention that even though the Adams County district court acquired jurisdiction it was not such that it could serve to exclude proceedings such as the present one because the question of support of minor children has been recognized often as a question which can be litigated separate and apart from divorce proceedings. The most recent case recognizing the right of a mother to institute an action in equity for maintenance and support of children is McQuade v. McQuade, 144 Colo. 11, 354 P.2d 597. There both of the parties to the divorce had been found guilty to conduct precluding the granting of relief. After dismissal of the suit the mother brought an action designated as a suit in equity for support. The holding was that such action could be maintained and was in no way affected by the previous adjudication. In pointing out that support is a right which belongs to the child independent of the rights of the mother the Court (per Mr. Justice Frantz) paid:

'Although the formalism distinguishing law and equity is now largely historical, the underlying substantive concepts of these great branches of jurisprudence have been retained in large measure in their immemorial efficacy in our present system. There is authority for the proposition that equity will entertain a suit by a wife to compel her husband to support their infant child. Cohen v. Markel, Del. Ch., 111 A.2d 702; Addy v. Addy, 240 Iowa 255, 36 N.W.2d 352; Leibold v. Leibold, 158 Ind. 60, 62 N.E.2d 627; Eldred v. Eldred, 62 Neb. 613, 87 N.W. 340. See 13 A.L.R.2d 1142.

'Language in Graham v. Graham, 38 Colo. 453, 88 P. 852, 8 L.R.A.,N.S.,...