State ex rel. Glasier v. Glasier, 39442

• Decision Date: 30 July 1965
• Docket Number: No. 39442,39442
• Citation: State ex rel. Glasier v. Glasier, 137 N.W.2d 549, 272 Minn. 62 (Minn. 1965)
• Parties: STATE of Minnesota, ex rel. Beverly A. GLASIER, Appellant, v. Fern GLASIER and Darwin L. Glasier, Respondents.
• Court: Minnesota Supreme Court

Page 549

137 N.W.2d 549

272 Minn. 62

STATE of Minnesota, ex rel. Beverly A. GLASIER, Appellant, v. Fern GLASIER and Darwin L. Glasier, Respondents.

No. 39442.

Supreme Court of Minnesota.

July 30, 1965.

Syllabus by the Court

1. Since a proceeding to determine custody of a minor child partakes of the nature of an action in rem, the res being the status of the minor, except where necessary as a police measure only the court of that state in which the minor is domiciled can fix or change that status.

2. It is the general rule that where there is no outstanding judicial award of custody by a foreign court, the court in the state where children are domiciled has power to make an award of custody even though the children may be absent from the state.

3. Since petitioner was domiciled in the State of Washington, the surreptitious removal of her children by their father to the State of Minnesota did not transfer the children's domicile out of the State of Washington.

4. A custody decree is entitled to due recognition upon principles of comity unless the best interests of the child, due to a change of conditions, otherwise requires. Custody decrees of a sister state will not be changed by the courts of this state when the children are not domiciled here in the absence of exceptional circumstances.

5. A state court should not exercise its jurisdiction as parens patriae to protect nonresident child within its borders except when necessary for the good of the child. It will not do so to settle conflicting claims of the parents.

6. Where the jurisdictional facts as to residence and domicile were raised and litigated in the court in which the decree of divorce and the custody orders were rendered, that decree cannot be attacked collaterally in another jurisdiction with respect to jurisdictional facts. Under such circumstances it becomes res judicata and by force of the full faith and credit clause it may not be questioned collaterally in another jurisdiction.

7. When a court of another state having jurisdiction of the parties in a divorce suit and the power to award custody of their children enters an order concerning it, the question of such custody will not be adjudged by a court of this state on a writ of habeas corpus, but the parties will be remitted to the court in which the divorce suit is brought.

Olson, Kief & Severson, Bemidji, for appellant.

Charles Clark, Park Rapids, for respondents.

NELSON, Justice.

The jurisdiction of the District Court of Hubbard County was invoked by petitioner, Beverly A. Glasier, in this habeas corpus proceeding to test the right of respondents, Fern Glasier and Darwin L. Glasier, to the custody of Pamela Jo Glasier, born May 30, 1954, and Cynthia Kay Glasier, born March 22, 1957. Petitioner and respondent Darwin L. Glasier (hereinafter referred to as respondent) are the parents of these children and at the time of the hearing, March 13, 1963, were husband and wife, although petitioner was subsequently granted a divorce by the Superior Court of Spokane County, Washington.

Petitioner and respondent resided in Spokane, where respondent was employed, for several years prior to 1962. In August 1962 respondent enlisted for a 3-year term in the United States Army, following a long period of marital difficulties. On December 18, 1962, he returned to Spokane on leave. On December 20, after telling petitioner he was taking the children out for dinner, he left the State of Washington with them for Park Rapids, Minnesota. On December 21, petitioner instituted an action for absolute divorce in the Spokane County Superior Court, in which action she sought custody of the children. On that date the court made an order awarding their temporary custody to petitioner, respondent and the children being then in Montana en route to Park Rapids. On December 22, they arrived at the home of respondent Fern Glasier near Park Rapids. On December 24, the summons, complaint, and order of the Washington court were personally served on respondent Darwin Glasier there.

The order required him to return the children to Washington and to appear at a hearing before the Washington court January 18, 1963. Respondent did not return the children and on the date of the hearing made a special appearance by an attorney, but not personally, to move that the action be quashed for want of jurisdiction over himself and the children, based upon an alleged change of domicile. On February 7, 1963, the Washington court entered an order denying respondent's motion and continuing the prior order awarding custody to petitioner in effect. On March 7, 1963, the Washington court entered a judgment of contempt against respondent. At the time of the habeas corpus hearing respondent was restraining the children from going with petitioner to her home in Spokane. His plan for taking care of the children in the immediate future was to leave them with a girl friend in Germany. Petitioner's plan was to have the children live with her in the upstairs of her parents' home in Spokane. Her parents were willing to help her to care for them and to aid her financially if necessary.

The record is not without the usual faultfinding common to both sides where divorce proceedings are commenced after prolonged periods of marital difficulties. We need say only that the preferred forum in which to try the issues raised thereby must of necessity be in the place of the parties' actual residence and domicile, where they have lived their married lives, established their home, and raised their children.

The District Court of Hubbard County, after a full hearing in the habeas corpus proceeding initiated by petitioner to regain custody of the children, denied her petition and awarded respondent their care, custody, and control until the further order of the court, subject to the following specific terms and conditions: That he not remove the children from the State of Minnesota without the approval of the court, after notice to the petitioner; that he leave said children in the care of his mother, respondent Fern Glasier, until the further order of the court; that petitioner have a right of visitation with the children at all reasonable times and upon all reasonable occasions at the residence of Fern Glasier; that both respondents and petitioner be enjoined from removing the children to any point outside this state.

Petitioner appeals from the judgment thereafter entered, assigning as error: (1) The court erred in refusing to order judgment on the pleadings, awarding custody of the children to petitioner; (2) the court erred in refusing to amend its findings of fact, conclusions of law, and order for judgment to award their custody to petitioner.

One of the questions before us is whether the Minnesota court had jurisdiction to make an award of custody in the habeas corpus proceeding. Another is whether the Washington court had jurisdiction to proceed as it did in the divorce action.

1. It is clear that the District Court of Hubbard County had personal jurisdiction over the parties, but it does not follow that it had jurisdiction to determine the custody of the children contrary to the determination made by the Washington court. The general rule governing jurisdiction to determine custody of children not domiciled in this state, as well as the exception to that rule, was expressed in State ex rel. Larson v. Larson, 190 Minn. 489, 491, 252 N.W. 329, 330:

'The question of jurisdiction as here presented is a new one in this state. An examination of certain fundamental principles of conflict of laws is therefore necessary, bearing in mind always that here we are not dealing with substantive property rights but with the question of the domicil of a child and the jurisdiction of courts to deal with matters of custody, which jurisdiction depends upon a determination of the question of domicil. A proceeding to determine custody of a minor child partakes of the nature of an action In rem, the Res being the child's status or his legal relationship to another. Except where necessary as a police measure (see Hartman v. Henry, 280 Mo. 478, 217 S.W. 987--neglected child), it would seem that the only court which has power to fix, to change, or to alter this status is the court of the state in which the minor child is domiciled.' (Italics supplied.)

It is clear from the holding in the Larson case that as a general rule only the court of that state in which the minor is domiciled can determine the custody of a child, since the proceeding instituted for that purpose is an action in rem.

State ex rel. Carlson v. Hedberg, 192 Minn. 193, 256 N.W. 91, involved a habeas corpus proceeding, brought on the relation of Wisconsin-appointed guardians to obtain the custody of their wards, who were domiciled in Wisconsin but living in Minnesota. There we affirmed the action of the trial court in awarding custody to the guardians, saying that '(i)t is settled law that the only state which has jurisdiction to appoint a guardian is the state wherein the child is domiciled.' 192 Minn. 198, 256 N.W. 93. This language has been interpreted as a holding that the Minnesota court lacked jurisdiction to make an award in favor of the Minnesota parties with whom the children were living, because of the existence of a legal domicile of the children in Wisconsin. Annotation, 4 A.L.R.2d 42. However, in In re Adoption of Pratt, 219 Minn. 414, 422, 18 N.W.2d 147, 152, we said:

'The jurisdiction of the state extends to all persons within its territorial limits, regardless of the place of their domicile. From earliest times, infants and other persons lacking the physical and mental capacity to protect themselves or their property have been accorded special protection. Formerly, this protective function was regarded as a prerogative of the crown and was exercised by the king as Parens patriae or the parent, in a peculiar sense, of orphaned and dependent children and other unfortunates * *...