Small v. Small

• Decision Date: 06 November 1965
• Docket Number: No. 44277,44277
• Citation: 407 P.2d 491,195 Kan. 531
• Parties: Mary Lou SMALL Appellee, v. James Owen Joseph SMALL et al., Appellant.
• Court: Kansas Supreme Court

Page 491

407 P.2d 491

195 Kan. 531

Mary Lou SMALL Appellee, v. James Owen Joseph SMALL et al., Appellant.

No. 44277.

Supreme Court of Kansas.

Nov. 6, 1965.

Rehearing Denied Dec. 10, 1965.

Syllabus by the Court

1. Disobedience of an order made by a court without jurisdictional of the subject matter or the person of the defendant does not constitute contempt.

2. The well established rule of this court that jurisdictional of a court to consider and give custody of a child to one parent or the other depends in principle upon the domicile of the child, is continued in effect subject to the provisions of K.S.A. 60-1610(a).

3. The rules for considering the domicile of a child considered and applied.

4. Lack of jurisdiction of the subject matter may be raised at any stage of the proceedings, it cannot be waived and it is a continuing duty of a court to determine on its own initiative whether it has jurisdiction of the subject matter.

5. The defense of lack of jurisdiction of the persons may be asserted by motion with other defenses without waiving the objection (K.S.A. 60-212[b].)

6. The old distinction between a general and special appearance loses its significance under the provisions of K.S.A. 60-212(b). The purpose of the provisions is to permit the combining of an objection to the jurisdiction with pleadings on the merits without the old ritual of first entering a special appearance.

Gene R. Martin, Kansas City, Mo., argued the cause, and James W. Dahl, Kansas City, with him on the briefs for appellants.

J. Willard Haynes, Kansas City, for appellee.

HATCHER, Commissioner.

This appeal, involving a dispute over jurisdiction of the person of the defendant and the subject matter of the action, grew out of a judgment in contempt for violation of a child custody order in an action for separate maintenance and other relief.

The facts which pertain to the jurisdictional questions are to be gleaned from the pleadings, the affidavits and oral testimony of the plaintiff. The nature of the controversy requires a somewhat a lengthy presentation.

The plaintiff and defendant were married December 14, 1958, at Tonda, Manila, Philippines. Prior to the marriage, plaintiff had lived in Wyandotte County, Kansas. Just before her marriage to defendant she was living in a separate apartment in her mother's house where she had her own furniture and personal things. She paid her mother rent for this apartment while she was living there. When she left to get married, she left her furniture in the apartment because she could not take it with her.

At the time of their marriage defendant was residing in Manila where he was employed by TWA as their district transportation manager. Plaintiff and defendant lived and made their home in Manila for the next nine months. At that time TWA discontinued its office in Manila and defendant was transferred to Bombay, India.

In the meantime plaintiff became pregnant. When defendant was transferred to Bombay plaintiff returned to the United States so that her child would be born in this country. The child in question, Marie Elizabeth Small, was born November 2, 1959, at a hospital in Kansas City, Missouri from which the child and plaintiff left to live in the apartment maintained by plaintiff's mother in her home. On December 23, 1959, approximately seven weeks after the baby's birth, plaintiff and the child left Kansas City, Kansas, where she had been staying, and rejoined the defendant to live in Bombay, India. Plaintiff, defendant and the child, resided in Bombay for approximately one and one half years until October, 1961. At that time defendant was transferred to Cairo, Egypt where he is now employed for TWA as their district transportation manager.

Since defendant's transfer to Cairo defendant and the child have resided in Cairo and are living and making their home there at the present time. Plaintiff resided with her husband and child in Cairo until April 23, 1963, approximately one and one half years. She then came to the United States for the purpose of securing treatment for a back injury. At that time the child remained at the home in Cairo.

The plaintiff testified:

'* * * The child was left in Cairo with a servant, a private nanny who lived in her room, slept with her, spoke seven languages, so she felt that the child was in perfectly good hands. The nanny had cared for the baby ever since they were in Cairo, about a year and a half. 'Nanny' is British, like a maid, it's an English term and refers to a child's nurse. She felt that the child was in good hands and that the nanny was competent to take care of the child. * * *'

It was plaintiff's intention to return to her husband and child in Cairo after receiving treatment. However, sometime later, probably three or four months after she had arrived, she decided not to go back. She has continued to live in Kansas City, Kansas since April 23, 1963, to the present.

Subsequent to the marriage, because of the employment of the defendant, James Owen Joseph Small, with Trans World Airlines, the plaintiff and defendant were required to live wherever defendant was employed, which at all times subsequent to the marriage was outside of the territorial limits of the United States.

Neither the plaintiff, the defendant nor the child were in the United States after the birth of the child except for short visits and when the plaintiff came to Kansas City for treatments in April of 1963.

The procedural facts will next be stated in their chronological order.

On November 29, 1963, the plaintiff filed her petition for separate maintenance in which, among other things, she stated the child was in the possession and custody of the defendant in Cairo, Egypt, that the defendant had funds on deposit with the TWA Club Credit Union and was drawing a salary from TWA. The prayer of the petition was for separate maintenance, custody of the child, alimony and that the defendant be enjoined from receiving and the proper officers be enjoined from paying to defendant the funds deposited or the salary due defendant.

On the day the petition was filed the trial court issued a restraining order as prayed for in the petition.

No attempt has ever been made to obtain service of summons upon the defendant.

The defendant appeared specially on January 31, 1964, and filed a motion to dismiss the action on the grounds the court was without jurisdiction of the person of the defendant; the defendant had not been properly served with process, and the petition failed to state a claim against the defendant upon which relief could be granted. This motion was overruled February 13, 1964.

On March 30, 1964, plaintiff filed a motion for an order changing custody of the minor child during the pendency of the action. On March 31, 1964, defendant filed a motion to dismiss the action insofar as it pertained to child custody for the reason it appeared upon the face of the petition and plaintiff's motions and affidavits that the court did not have jurisdiction of the subject matter because the child was not physically present in the country and it was not domiciled in the state of Kansas.

The court, on April 28, 1964, entered an order granting custody of the child to plaintiff during the pendency of the action and directing the defendant to deliver the child the plaintiff in Kansas City, Kansas. Defendant's motion to dismiss was overruled.

Plaintiff filed a motion on October 20, 1964, for an order fixing a time for the delivery of the child. On October 27, 1964, the court directed defendant to deliver the child to plaintiff on or before November 25, 1964.

On December 3, 1964, plaintiff filed a motion requesting that defendant be cited for contempt. On the same day the court issued an order commanding defendant to appear and show cause, if any, why he should not be accused, placed on trial and punished for contempt. On December 30, 1964, the court directed plaintiff to refile her wtitten accusation, directed defendant to answer and set the matter for hearing on February 19, 1965. The defendant answered stating again that the court did not have jurisdiction over the subject matter or the person of defendant, he had not been properly served with summons and the court was without jurisdiction in the contempt proceedings.

The trial court, on February 26, 1965, entered an order finding the defendant guilty of indirect contempt and enjoined TWA from paying him any wages or salary until he purged himself of the contempt.

The defendant has appealed from the contempt order.

The appellant contends:

'1. The orders of April 17, 1964, and October 23, 1964, were null and void because the court was without jurisdiction of the subject matter, the child of the parties, and

'2. On orders of April 17, 1964, and October 23, 1964, were null and void because the court was without jurisdiction over the person of the defendant and could not make a valid order personally ordering and directing him to bring and deliver the child to plaintiff, and

'3. The court was without jurisdiction over the person of the defendant and could not validly try and adjudge him in contempt.'

The statement of a few general principal of law may tent to limit the issues to be considered.

Although the disobedience of an erroneous order made by a court within its jurisdiction is contempt, the contra rule is disobedience of an order made by a court without jurisdictional of the subject matter of the person of the defendant is not contempt. (Bridgeport Machine Co. v. Arthur A. Beard, Inc., 135 Kan. 711, 11 P.2d 990; State ex rel. Warnick v. Wilson, 162 Kan. 507, 178 P.2d 277; 17 C.J.S. Contempt § 14, p. 38.)

In a proceeding for child custody the subject matter or res is the child.

It is well established rule of this court that jurisdiction of a court to consider and give custody of a child to one parent or the other depends in principle upon the domicile of the child. (Tompkins v. Garlock, 189 Kan. 425, ...