Strahan v. Strahan
| Decision Date | 01 April 1965 |
| Docket Number | No. 3314,3314 |
| Citation | 400 P.2d 542 |
| Parties | Beverly STRAHAN, Appellant (Defendant below), v. Thedore P. STRAHAN, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
Lawrence A. Yonkee, of Redle, Yonkee & Redle, Sheridan, for appellant.
E. E. Birchby, of Birchby & Birchby, Sheridan, for appellee.
Before PARKER, C. J., and HARNSBERGER, GRAY and McINTYRE, JJ.
The appeal before us raises the question as to whether a district court has jurisdiction to modify a divorce decree following a hearing on an application to punish the husband for contempt, where no pleading containing a petition for modification of the decree has been filed on behalf of the husband.
A decree of divorce was granted to Beverly Strahan, defendant, on her cross-complaint against Theodore P. Strahan, plaintiff; and she was given custody of the four minor children of plaintiff and defendant, subject to the right to reasonable visitation by the father at all reasonable times and places. The husband, according to the decree, was to pay the wife $125 per month per child for the support of the children.
An order to show cause was served upon the husband more than 19 months after the decree, requiring him to appear and show cause why he should not be adjudged guilty of contempt of court and punished for failure to make all support payments required of him under the decree. He did appear at the appointed time and place, and a full hearing was had on the wife's contempt citation.
At this hearing the parties testified extensively relative to changes in circumstances after the divorce decree was entered and as to the children's need and the husband's ability to pay. The testimony disclosed that the wife had remarried and at the time of hearing on the contempt citation was living with her new husband and the children at New Buffalo, Michigan. This was something which had not been anticipated at the time of the decree, and a matter which affected the husband's rights of visitation with his children.
With respect to the husband, he also had remarried and there was testimony indicating he was not able to pay as much as he appeared to be able to pay at the time of the decree. The husband testified the mother of the children had threatened to hurt him through the children and to fix it so he would never be able to see them again.
Following the hearing on contempt, Strahan was adjudged guilty of contempt. However, whereas $4,200 was claimed as the amount of delinquent payments for child support, the court ordered that plaintiff-husband should purge himself of all contempt by paying the sum of $1,000. The court also proceeded in its order to modify the original decree.
It was ordered, for example, that as long as the mother lived outside the State of Wyoming, the father should have custody of the children for two months each summer, he being responsible for their transportation expenses in coming to him and the mother being responsible for their return transportation. Also, the modification stated that as long as the mother resides outside of the State of Wyoming, the husband should pay only the total sum of $250 per month for all of the children, the amount being propertionately reduced as each child becomes of legal age, self-supporting or married.
The defendant-wife, now Beverly Foldenauer, has appealed. Her contentions are primarily these: (1) The court did not have jurisdiction or power to modify the decree of divorce; and (2) the order relieved appellee from accrued child-support payments, and this was error.
State courts have quite universally accepted the proposition, where custody of children is involved in a divorce action, that the court retains jurisdiction so the decree may be modified at any time respecting custody or the payment of support money, the paramount consideration being to serve the best interest and welfare of the children. This jurisdiction is generally referred to as a continuing jurisdiction. Application of Lorenz, 194 Or. 355, 241 P.2d 142, 147, rehearing denied Ex parte Lorenz, Or., 242 P.2d 200; Johnson v. Black, 137 Colo. 119, 322 P.2d 99, 103; Maudlin v. Maudlin, 68 Idaho 64, 188 P.2d 323, 327.
As expressed in In re Cutts, 229 Or. 33, 366 P.2d 179, 183, subject to requirements of due process of law and orderly procedure, custody provisions of divorce decrees remain open during minority of the children concerned. Some courts have indicated the continuing jurisdiction of the court is such that it may on its own motion modify the decree, if the welfare of the children require; or that those interested are at liberty at any time to invoke the inquiry of the trial court concerning the condition and the needs of the children. Bishop v. Bishop, Okl., 321 P.2d 416, 421; Kenworthy v. Kenworthy, 197 Okl. 679, 174 P.2d 587, 588-589.
The Supreme Court of Minnesota, in State of Illinois ex rel. Shannon v. Sterling, 248 Minn. 266, 80 N.W.2d 13, 21, has specifically refused to hold that a court is powerless to amend its own final decree of divorce without first having an express application therefor. To do so, it said, would disregard the inherent equitable power of the court to control the custody of children and would subject their welfare to intolerable delay through a needless circuity of actions. The Minnesota court quoted this with approval, from one of its former decisions:
'* * * Why send the parties who are already before the court out through one jurisdictional door when they may immediately, via a subsequent and different action, return for such relief through another door?' (All italics in original.)
Regardless of what we may say of the court's continuing jurisdiction to modify divorce decrees, the requirements of due process of law and orderly procedure are always present. Therefore, in disposing of the matter presently before us, we should look first to the applicable statute, § 20-61, W.S.1957, which provides:
'The court, in granting a divorce, * * * may make such disposition of, and provision for, the children as shall appear most expedient under all the circumstances, and most for the present comfort and future well-being of such children; and the court may from time to time afterward on the petition of either of the parents, revise and alter such decree concerning the care, custody and maintenance of such children, as the circumstances of the parents and the benefit of the children shall require.'
The effect of the foregoing statute, as it applies to the instant case, is that it authorizes the court, 'on the petition of either of the parents,' to revise and alter its decree. In procedural matters, however, we must give effect to Wyoming's Rules of Civil Procedure. The rules themselves declare that statutory provisions shall not apply whenever inconsistent with such rules. Rules 1, 81, and 87, W.R.C.P. And we have said the rules govern procedure but do not change substantive rights. State ex rel. Frederick v. District Court of Fifth Judicial District In and For County of Big Horn, Wyo., 399 P.2d 583.
Rule 15(b), W.R.C.P., states that when issues not raised by the pleadings...
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