Searles v. Searles, 25999

• Decision Date: 07 May 1973
• Docket Number: No. 25999,25999
• Citation: 495 S.W.2d 759
• Parties: Scott SEARLES, Jr., Plaintiff-Respondent, v. Antonia Garcia SEARLES, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 759

495 S.W.2d 759

Scott SEARLES, Jr., Plaintiff-Respondent, v.Antonia Garcia SEARLES, Defendant-Appellant.

No. 25999.

Missouri Court of Appeals, Kansas City District.

May 7, 1973.

Motion for Rehearing and/or Transfer Denied June 4, 1973.

Application to Transfer Denied July 16, 1973.

Rosemary Scott, Grand Rapids, Mich., James H. McLarney, Clarence W. Crumpecker, Jr., Kansas City, for defendant-appellant; Swanson, Midgley, Eager, Gangwere & Thurlo, Kansas City, of counsel.

Robert Hines, Bear, Hines & Thomas, Columbia, for plaintiff-respondent.

Before SHANGLER, P.J., and SWOFFORD and WASSERSTROM, JJ.

WASSERSTROM, Judge.

The husband was granted a divorce in the trial court, together with custody of the child born of the marriage.The wife appeals, alleging the following points of error: (1) that the trial court should have stayed this proceeding in favor of a suit for separate maintenance, previously filed by her in Michigan; (2) that even if the trial court properly proceeded with the divorce action, it erred in exercising jurisdiction over the matter of child custody and (3) that the trial court denied her due process by requiring the case to be tried under the circumstances which existed.

ITHE DENIAL OF A STAY

With respect to the issue of whether proceedings should have been stayed in Missouri, the essential facts are as follows.For some period prior to their separation the parties maintained a family home in Missouri.In August, 1970, the wife left for Michigan, taking with her the son who was then ten years of age.The husband followed almost immediately in an effort to persuade his wife to return to Missouri, and on that trip he was served with summons in a suit for separate maintenance which the wife had just filed in the Michigan courts.

Thereafter, the husband applied to the Michigan court for custody of the child, temporary custody was awarded to him on November 13, 1970, and the husband returned with the child to the Missouri home.He then filed suit in the Circuit Court in Boone County, Missouri for divorce.The wife presented repeated requests that this Missouri divorce action be stayed in deference to her separate maintenance action pending in Michigan.The propriety of the rejection of those requests constitutes the question now for consideration.

Both parties agree that the Missouri court had jurisdiction and that the pendency of a suit in Michigan previously filed could not give rise to a plea in abatement.These propositions are established in this State by State ex rel. Miller v. Jones, 349 S.W.2d 534, l.c. 538 (Mo.App. 1961), which is in accord with the law generally throughout the country.See annotation 'Stay of Civil Proceedings Pending Determination of Action in Another State or Country', 19 A.L.R.2d 301.

However, the wife contends that the trial court should have stayed the divorce action as a matter of discretion and that the refusal to do so constituted an abuse of discretion.As factors in favor of granting the stay, the wife relies on the fact that the Michigan proceeding had been filed first in point of time; that multiple litigation is wasteful and imposes unwarranted expense on the parties; and that the husband had appeared before the Michigan court and had sought and obtained affirmative relief by way of an award of temporary child custody.The wife further argues (although these additional facts were not introduced in evidence) that the parties had stipulated for a trial of the Michigan case to be held in December, 1971, and that certain medical examinations had been taken of both the husband and wife in preparation for that trial to be held in Michigan.On the other hand the husband relies upon countervailing factors as follows: litigating in Michigan would be unduly expensive, almost all the events leading to the separation occurred in Missouri, and virtually all the witnesses were located in Missouri.

Some of these factors are quite important, especially access to witnesses, and will be further discussed in connection with Point II of this opinion.However, for present purposes there is another point which is controlling and decisive; namely, that the Missouri proceeding could dispose of all issues between the parties, whereas under Michigan law the husband would not be able to have his claim for divorce adjudicated in that jurisdiction.

It is quite clear that the Missouri court should not exercise its jurisdiction in favor of staying the Missouri proceedings unless the husband (who was seeking relief in Missouri) could obtain the same full relief in the Michigan proceeding.Thus, in State ex rel. Miller v. Jones, 349 S.W.2d 534, l.c. 539 (Mo.App.1961)the court quoted with approval the rule that '(T)hecourt in which the second action is brought may in its discretion stay or suspend that suit, awaiting decision in the first one, or influenced by a spirit of comity, may refuse to entertain it, if the same relief may be awarded in the prior suit.'(emphasis added)This rule is emphasized in the annotation appearing in 19 A.L.R.2d 301, at p. 307, as follows:

'On the other hand, if additional or different issues or parties are involved in the domestic suit, so that the judgment recovered in the foreign suit would not constitute a bar to the prosecution of the domestic suit, or if the relief obtainable in the domestic suit is more advantageous to the plaintiff, the domestic suit is not vexatious or harrassing but is one brought by the plaintiff in the legitimate exercise of his undeniable right to bring a suit in any forum he may choose in which he may obtain service upon the defendant, and the refusal to grant the stay constitutes no abuse of discretion; and, conversely, its grant is an abuse of discretion.'

In support of his contention that he was not permitted to file a counterclaim for divorce in the wife's pending Michigan action for separate maintenance, the husband cites Hatch v. Hatch, 323 Mich. 581, 36 N.W.2d 152, decided by the entire Bench of the Michigan Supreme Court in 1949.That case does unequivocally hold exactly what the husband here contends, the Hatch ruling being based upon a Michigan statute, M.S.A. § 25.89, § 9,M.C.L.A. § 552.9, which requires that the party applying for divorce must have resided in Michigan for one year immediately preceding the filing of his pleading.The Hatch decision holds that this applies even though the husband attempted to present his claim for divorce as a cross bill in a suit for separate maintenance which had already been properly filed by the wife.

The wife admits that the Hatch case so holds and further admits that it would be controlling here, except that she further contends that the Michigan statutes were amended in 1958 in such a manner as to vitiate the effect of the Hatch decision.A careful study of the Michigan statutes discloses that the 1958amendment did not have the effect contended for by the wife.So far as is relevant here, the effect of the 1958amendment was merely to rearrange the statutory provisions and to divide between § 25.89,§ 9 and new § 25.89(1),M.C.L.A. § 552.9a, what had previously all been contained wholly within the former § 25.89,§ 9.

The wife also argues that the husband would have been permitted to file a counterclaim for divorce under Michigan General Court Rule 203, which was adopted in 1963, subsequent to the Hatch decision.However, there is no attempt by the wife to show that the Michigan courts have any authority or had any intention by the adoption of Rule 203 to change the statutory jurisdictional rules in divorce actions which had been established by the legislature.Independent research discloses that the rule making power conferred on the Michigan Supreme Court authorizes it to prescribe procedure and practice but does not extend to a change in substantive rights.Michigan Constitution, 1908, Art. VII, § 5;Shannon v. Cross, 245 Mich. 220, 222 N.W. 168(1928).The rule making power does not permit either the enlargement or restriction of jurisdiction given by a statute.Shannon v. Cross, supra;Washington-Southern Nav. Co. v. Baltimore & Philadelphia Steamboat Co., 263 U.S. 629, 635, 44 S.Ct. 220, 68 L.Ed. 480;Standish v. Gold Creek Mining Co., 92 F.2d 662, 663(C.A.9, 1937);Joiner and Miller, 'Rules of Practice and Procedure: A Study of Judicial Rule Making', 55 Mich.L.Rev. 623, l.c. 629--630, 634 and 645.

Since the husband could not have obtained in Michigan the relief which he sought in this Missouri proceeding, the denial of a stay was not an abuse of discretion.

IITHE EXERCISE OF JURISDICTION OVER CHILD CUSTODY

The next issue for decision is whether the Missouri trial court, after deciding to proceed with the divorce itself, properly determined to proceed also with respect to the matter of child custody.What would otherwise have been an intricate problem in a very complicated area of law has been vastly simplified by the comprehensive and scholarly opinion on this subject by Judge Cross, speaking for this Court in Kennedy v. Carman, 471 S.W.2d 275(Mo.App.1971).That landmark opinion, as will be seen, controls virtually every aspect of the situation here presented.

The first matter for inquiry on this branch of the case is whether Missouri has a proper basis for the exercise of jurisdiction.Any possible question in this regard has been fully dissipated by the Kennedy opinion.The decision holds at p. 279 that there are three generally accepted bases for jurisdiction in child custody proceedings.One of these bases is the domicile of the child, the second is personal jurisdiction over the parents, and the third is physical presence of the child.In this case, all three tests are met.

The wife here does not so much question the jurisdiction of the Missouri court to act, but rather the thrust of her objection is that the exercise of jurisdiction was an abuse of discretion.This contention must be rejected.As is demonstrated in great...