State ex rel. Klopotek v. District Court of Sheridan County

• Decision Date: 10 December 1980
• Docket Number: No. 5356,5356
• Parties: STATE of Wyoming, upon the relation of Raymond W. KLOPOTEK, Petitioner, v. The DISTRICT COURT OF SHERIDAN COUNTY, Wyoming, and the Honorable Leonard McEwan, Judge thereof; Bonita Cline, Respondents.
• Court: Wyoming Supreme Court

Page 223

621 P.2d 223

STATE of Wyoming, upon the relation of Raymond W. KLOPOTEK, Petitioner, v. The DISTRICT COURT OF SHERIDAN COUNTY, Wyoming, and the Honorable Leonard McEwan, Judge thereof; Bonita Cline, Respondents.

No. 5356.

Supreme Court of Wyoming.

Dec. 10, 1980.

Fred R. Dollison of Badley, Rasmussen & Shoumaker, Sheridan, for petitioner.

James N. Wolfe, Sheridan, for respondent Bonita Cline.

Glenn Parker of Hirst & Applegate, Cheyenne, for respondent the Honorable Leonard McEwan.

Bernard Q. Phelan, Cheyenne, as Guardian Ad Litem for Juanita Adean Klopotek.

Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.

ROONEY, Justice.

This is a child-custody case. It came to us on a petition of Raymond W. Klopotek, as relator, (hereinafter referred to as father) for: (1) a writ of habeas corpus, and (2) a writ of prohibition to be directed to the Honorable Leonard McEwan, Judge, Fourth Judicial District, prohibiting further proceedings in the child-custody case pending before him in Sheridan County. After issuing an order to show cause why the prayer of the petition should not be granted and after receiving responses thereto from Judge McEwan and from Bonita Iris Cline, the other party to the proceeding in the district court (hereinafter referred to as mother): (1) we appointed Bernard Q. Phelan, attorney at law, Cheyenne, Wyoming, Guardian Ad Litem for minor Juanita Adean Klopotek, and we directed him to appear and represent her interests herein; and (2) we made the following order:

"A Petition for a Writ of Prohibition and for a Writ of Habeas Corpus having been duly presented to this court; and sufficient cause having been shown therein to require further inquiry; and Respondent, The District Court of Sheridan County, Wyoming, and The Honorable Leonard McEwan, Judge thereof (hereinafter referred to as Respondent McEwan) having therefore been ordered to show cause why further proceedings in the district court in this matter should not be absolutely restrained; and Respondent McEwan having duly filed a 'Response to "Order to Show Cause Why Writ of Habeas Corpus and Writ of Prohibition Should Not Issue" entered by the Supreme Court on August 20, 1980' in which he averred "It appearing that Respondent McEwan contemplates further proceedings in the guardianship now pending before him; that Petitioner has questioned his jurisdiction to do so; that actions already taken by him amount to the exercise of such jurisdiction; and that he may not have had or now have such jurisdiction; and

that the restraint, if any, of Juanita Adean Klopotek was by Bonita Cline and not by Respondent McEwan, and in which he indicated his belief that the issue is 'Can a minor who is over 14 years of age have a guardian of his or her choice appointed as provided by Wyoming Law or does the "Uniform Child Custody Jurisdiction Act" preclude a minor over 14 from selecting his or her guardian'; and Bonita Cline, the other party to the proceeding in the district court having requested and received permission to make a response, and such response having been made-all pursuant to the provisions of Rules 3 and 4 of this court; and

"It appearing that Respondent McEwan is not restraining the person of Juanita Adean Klopotek; but that such restraint is by Bonita Cline, who is subject to the jurisdiction of this court in this matter by virtue of her response filed herein, and

"It appearing that the facts of this matter are not in dispute and are contained in the record before us, it is

"ORDERED that a hearing before the court relative to the questions of law pertaining to the application for a writ of prohibition be, and the same hereby is, set for 10:00 A.M. on the 29th day of October, 1980, at the Supreme Court Courtroom, Supreme Court Building, Cheyenne, Wyoming, at which time Petitioner, Respondent McEwan, Respondent Bonita Cline and Juanita Adean Klopotek may present such argument as they may or may not desire, pursuant to Rule 4(e) of this court. It is

"FURTHER ORDERED that the Petition for Habeas Corpus be, and the same hereby is, denied insofar as the application for it pertains to Respondent McEwan; and that a Writ of Habeas Corpus issue out of this court directing Respondent Bonita Cline to produce the body of Juanita Adean Klopotek before this court at 10:00 A.M. on the 29th day of October, 1980 at the Supreme Court Courtroom, Supreme Court Building, Cheyenne, Wyoming, it is

"FURTHER ORDERED that a copy of the Petition for a Writ of Habeas Corpus be filed in this case and that the Petition itself be returned to Petitioner with this Order pursuant to § 1-27-107, W.S.1977 (re Respondent McEwan); it is

"FURTHER ORDERED that such writ be served upon Respondent Bonita Cline by the Sheriff of Sheridan County, Wyoming, or his deputy.

"FURTHER ORDERED that a copy of this Order be furnished to counsel for Petitioner, counsel for Respondent, counsel for Bonita Cline, and to the guardian ad litem for Juanita Adean Klopotek."

Immediately after the hearing, we made the following Order:

"After examination of pleadings, memoranda briefs and other papers on file before the Court and hearing oral argument, all the parties or their counsel being present, the Court finds:

"1. That this Court has jurisdiction.

"2. That Petitioner is entitled to the custody of Juanita Adean Klopotek as a matter of law in accordance with the Judgment of the County Court, Barron County, Wisconsin in the case of Raymond W. Klopotek v. Bonita Iris Klopotek, dated March 27, 1969, as amended on August 13, 1976 and June 4, 1979 and the mother has unlawfully retained custody of the child.

"3. Generally in favor of Petitioner and against Respondents.

"It is, therefore,

"ORDERED that a writ of prohibition issue.

"FURTHER ORDERED that Respondent, Bonita Cline, forthwith this day relinquish custody of Juanita Adean Klopotek to her father Raymond W. Klopotek.

"FURTHER ORDERED that the matter of costs and expenses including those of "FINALLY ORDERED that an opinion of the Court follow."

the Guardian ad litem be and are taken under advisement.

The procedural background and the facts of this case as necessary for our disposition were contained in the exhibits to the petition. These include certified copies of a judgment of divorce dated March 27, 1969 in a case in which the father and the mother were the parties; an order dated August 13, 1976 amending such judgment; and, an order dated June 4, 1979 amending such judgment as amended-all from the Circuit Court, Barron County, State of Wisconsin. ¹ In the judgment, the Wisconsin court gave custody and control of the minor children of the parties to the mother, and the court ordered that the children not be removed from the state of Wisconsin without permission of the court. The August 13, 1976 order amending the judgment was pursuant to stipulation of the parties. It transferred "legal and physical custody of the two minor children of the parties, to wit: Nena Adean Klopotek and Michael Ray Klopotek" to the father, and it provided pursuant to such stipulation, that neither party "shall remove the said minor children from the State of Wisconsin for purposes of changing residency without permission of this court." The June 4, 1979 order amending the judgment as amended was also pursuant to stipulation of the parties. It provided that the original divorce judgment not in conflict with the order remain in full force and effect and it specified that "the legal and physical custody of the two minor children of the parties shall remain with the plaintiff (father) until further order of the court." It provided visitation rights to the mother for "a five week period each summer beginning on the last Friday of June" with the mother to pay the costs of transportation to effectuate the visitation.

Such visitation was exercised by the mother in June 1980. The children were taken to her present residence in Sheridan, Wyoming. ² When the visitation period expired on August 1, 1980, she refused to return the children to the father.

Exhibits to the petition filed herein also include: (1) a certified copy of a petition by the mother to the District Court, Fourth Judicial District, filed August 5, 1980, in which the mother prayed that she be appointed guardian of the two children; (2) certified copies of nominations by the children of the mother as guardian (Juanita Adean Klopotek was indicated to be 14 years of age, and Michael Ray Klopotek was indicated to be 12 years of age); (3) a notice from Judge McEwan setting the petition for appointment of a guardian for a hearing; and (4) a motion of the father, filed August 8, 1980 to quash the order setting hearing for appointment of a guardian on the grounds that the court lacked

" * * * jurisdiction to hear the above action, because the Amended Divorce Decree entered by the Barron County Circuit Court, State of Wisconsin on the 4th day of June, 1979 is entitiled (sic) to full faith and credit under the United States Constitution and because of Petitioner Bonita Iris Cline's (mother) violations of the Uniform Custody Jurisdiction Act."

Finally, included among the exhibits filed herein were certified copies of: (1) a petition for a writ of habeas corpus, filed August 18, 1980 in the District Court, Fourth Judicial District, by the father, praying for an order directing the mother to restore custody of the children to the father; (2) a transcript of hearing proceedings on the petition for a writ of habeas corpus; and (3) an order granting the petition insofar as it applied to Michael Ray Klopotek and denying it insofar as it applied to Juanita Adean Klopotek. At the hearing, the court indicated that it was denying the petition insofar as it applied to Juanita Adean Klopotek because "perhaps in the guardianship proceeding where the child is fourteen years of age or older that that could supersede the The proper disposition of this case is somewhat obscured by the fact that the petition...