State of La. ex rel. Eaton v. Leis, 83-1815
Decision Date | 06 July 1984 |
Docket Number | No. 83-1815,83-1815 |
Citation | 354 N.W.2d 209,120 Wis.2d 271 |
Parties | STATE of LOUISIANA ex rel. Patricia A. EATON, Petitioner-Appellant, v. Lambert Howard LEIS, Respondent. |
Court | Wisconsin Court of Appeals |
Roger L. Imes and Hale, Skemp, Hanson & Skemp, La Crosse, for respondent.
Before GARTZKE, P.J., and BABLITCH and DYKMAN, JJ.
This is an appeal from an order dismissing a case brought under sec. 52.10, Stats., Wisconsin's version of the Revised Uniform Reciprocal Enforcement of Support Act (URESA). Because the trial court erred in concluding it did not have subject matter jurisdiction to order respondent to pay support, we reverse.
The issue is whether a Wisconsin resident with legal but not physical custody of his or her children may be required to pay child support to the children's other parent residing in another state with the children.
Because neither party filed a transcript, we must ignore some facts alleged in the parties' briefs, for we can only decide this case on the record before us. Where the record is incomplete, this court's review is limited to whether the record as filed sustains the judgment. Klug & Smith Co. v. Sommer, 83 Wis.2d 378, 388, 265 N.W.2d 269, 273 (1978).
Patricia and Lambert Leis were divorced in 1978 in Monroe County, Wisconsin. Lambert was given custody of the parties' minor children. In April 1983, Patricia filed a URESA petition in the Juvenile Court for Vernon Parish, Louisiana. 1 In her petition she stated that she has had custody of the children since May 25, 1981, and that she and the children are in necessitous circumstances and are in need of support from Lambert. The Juvenile Court certified the petition and sent it to the circuit court for Vernon County, Wisconsin. The circuit court ordered Lambert to show cause why he should not pay support for his minor children. After a hearing, the circuit court concluded it did not have subject matter jurisdiction because the Monroe County divorce judgment gave custody of Lambert's minor children to him. It dismissed the order to show cause.
The Vernon County Circuit Court had subject matter jurisdiction. In Mueller v. Brunn, 105 Wis.2d 171, 176, 313 N.W.2d 790, 792 (1982), the court said:
Section 52.10(24), Stats., provides in part: 2 If the responding court finds a duty of support it may order the obligor to furnish support or reimbursement therefor and subject the property of the obligor to the order....
Section 52.10(2)(b), Stats., defines "duty of support":
"Duty of support" means a duty of support whether imposed or imposable by law or by order, decree or judgment of any court, whether interlocutory or final or whether incidental to an action for divorce, separation, separate maintenance or otherwise and includes the duty to pay arrearages of support past due and unpaid. [Emphasis added.]
Neither party asserts that a duty of support has been imposed on Lambert. The only question we face, therefore, is whether a duty of support could be imposed on him. A duty of support could be imposed on Lambert if a court could award legal custody of the children to Patricia. The question whether support is imposable on Lambert is determined under Wisconsin law. Sec. 52.10(7), Stats. 3
We conclude that a duty of support could be imposed on Lambert. There is nothing of record to controvert Patricia's statement in her petition that she has had custody of the parties' children since May 25, 1981. Additionally, a state other than Wisconsin could properly give custody of the children to Patricia.
La.Rev.Stat.Ann. sec. 13:1702 (West 1983), part of Louisiana's enactment of the Uniform Child Custody Jurisdiction Act, provides: 4
A. A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
(1) This state (i) is the home state of the child at the time of the commencement of the proceeding, or (ii) had been the child's home state within six months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state; 5 or
(2) It is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (ii) there is available in this state substantial evidence concerning the child's present or future care, protection, training, and personal relationships; or
(3) The child is physically present in this state and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or
(4)(i) It appears that no other state would have jurisdiction under prerequisites substantially in accordance with Paragraphs (1), (2), or (3), or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that this court assume jurisdiction.
B. Except under Paragraphs (3) and (4) of Subsection A, physical presence in this state of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this state to make a child custody determination.
C. Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody.
Section 822.03(1), Stats., part of Wisconsin's enactment of the UCCJA, is nearly identical to La.Rev.Stat.Ann. sec. 13:1702. A custody jurisdiction dispute between the courts of Louisiana and Wisconsin could be resolved in favor of the Louisiana court. Louisiana therefore could validly give custody of the parties' children to Patricia. If it did so, Wisconsin would recognize Louisiana's judgment or decree. Sec. 822.13, Stats. 6 A duty of support therefore is imposable on Lambert under Wisconsin law, and the trial court should have entered a support order.
Our conclusion is not altered by the fact that Patricia may have removed the children from Lambert's custody in violation of a court order. In State ex rel. Hubbard v. Hubbard, 110 Wis.2d 683, 329 N.W.2d 202 (1983), a father resisted support payments ordered by a California court after his ex-wife removed their children to California without the permission of the Wisconsin courts. After removal, the trial court granted legal custody to the father. He then resisted his ex-wife's URESA action for support, partly because she had flouted the Wisconsin custody order. The supreme court said: (Footnote omitted.) Id. at 690, 329 N.W.2d at 206. Stating that the ex-wife's flouting of the Wisconsin order "is deplorable", the court said that her actions "are not proper matters for consideration under the URESA." The court held that the ex-wife could properly bring the URESA support action. Id. at 692-93, 329 N.W.2d at 207.
The ex-wife in Hubbard removed the children from Wisconsin while she had custody of them. In this case, the record is silent as to the circumstances surrounding the children's removal from Wisconsin and whether they went to Louisiana with or without their father's permission. The unknown facts are irrelevant, however in light of the supreme court's statement that custody matters are of no concern in a URESA proceeding. We are bound by prior decisions of the Wisconsin Supreme Court. State v. Olsen, 99 Wis.2d 572, 583, 299 N.W.2d 632, 638 (Ct.App.1980).
It cannot be said that the statements in Hubbard making custody matters irrelevant in an URESA proceeding are dicta. Matters not decisive to the primary issue presented but germane to that issue are not dictum, and are a judicial act of the court which it will recognize as a binding decision. State v. Kruse, 101 Wis.2d 387, 392, 305 N.W.2d 85, 88 (1981), citing Chase v. American Cartage Co., 176 Wis. 235, 238, 186 N.W. 598, 599 (1922). The Hubbard court's reference to the separation of support and custody matters, repeated three times and supported by authority, was germane to the issue decided.
We recognize that some courts have held that non-custodial parents who remove children from the custodial parent may not maintain URESA actions. 7 We are not persuaded by these opinions. A child should not be punished for its parent's misconduct. 8 Even children "stolen" by a non-custodial parent need food, clothing and shelter. A parent with ability to provide support should be required to do so. Parents may litigate custody matters when they choose, but children's need for support is immediate. Monson v. Monson, 85 Wis.2d 794, 800-01, 271 N.W.2d 137, 140 (Ct.App.1978).
Order reversed and cause remanded for further proceedings consistent with this opinion.
I believe the trial court correctly concluded it had no power to order the custodial parent to pay child support in a URESA action, and would therefore affirm its judgment dismissing...
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