Tinker v. Tinker
| Decision Date | 01 July 1930 |
| Docket Number | 20112. |
| Citation | 290 P. 185,144 Okla. 97,1930 OK 329 |
| Parties | TINKER v. TINKER. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
When a divorce is granted, it is the duty of the court to make provision for the custody, support, and education of the minor children of the marriage, and may modify or change any order in this respect, whenever circumstances render such change proper, either before or after final judgment in the action.
Wife after divorce cannot by removal from state defeat continuing jurisdiction of court to modify decree as respects custody of minor child (Comp. St. 1921, § 507).
Where the wife has brought a suit for divorce, alimony, and for custody of the minor child and for funds for the education and support of the child, and judgment is awarded in her favor in all particulars, she cannot by removing to another state and taking the child with her defeat the continuing jurisdiction of the court to modify its decree in so far as it applies to the custody of the child.
Appeal from District Court, Tulsa County; R. D. Hudson, Judge.
Action by Helen W. Tinker against Sylvester J. Tinker. From the decree vacating order assigning for hearing a motion by defendant to modify the supplemental decree as to the custody of the child, defendant appeals.
Reversed and remanded.
T. J Leahy, of Pawhuska, J. H. Maxey, of Tulsa, and C. S MacDonald, of Pawhuska, for plaintiff in error.
Whit Y Mauzy, and J. B. Coppedge, both of Tulsa, for defendant in error.
This action was commenced in the district court of Tulsa county by Helen W. Tinker, defendant in error as plaintiff, against Sylvester J. Tinker, plaintiff in error as defendant, for divorce, on the grounds of extreme cruelty and for permanent alimony and for custody of a minor child of the parties. The trial court granted the plaintiff a divorce, awarded her the custody of the minor child and certain property as alimony and the further sum of $21,000, payable $100 per month for the support of the minor child, and $25,000 was awarded to the plaintiff as permanent alimony to be paid at the rate of $100 per month.
On account of a changed condition, the plaintiff and the defendant entered into a written stipulation whereby it was agreed the terms of the original decree should be modified in certain particulars. In a hearing the trial court entered a supplemental decree in accordance with the stipulation of the parties. By the supplemental decree certain changes were made as to the alimony and support of the child, and the custody of the child was given to the mother with the right of defendant to visit the child at the home of plaintiff at least once every two months.
A few months after the supplemental decree was entered, the defendant filed a motion to modify the supplemental decree as to the custody of the child. The motion alleged that the plaintiff had moved the child from the jurisdiction of the court and had taken it to the city of Kansas City and delivered it to the plaintiff's father and mother and that they had its care and custody. It was further alleged that the plaintiff failed to comply with the order of the court regarding the right of defendant to visit the child and on two different occasions had refused the defendant the right to see it. The motion further alleged that the defendant had since married, lived in his home in Osage county, and that he was able financially to care for the child, and prayed that the supplemental decree be modified and that the plaintiff be awarded the custody of the child during part of each month of the year and that defendant be awarded its custody for the remaining part of each month of the year as the court might deem for the child's best interest.
Upon the filing of the motion the court assigned the same for hearing and directed the plaintiff to have the child within the jurisdiction of the court on the date of the hearing. Thereafter the plaintiff filed a special appearance and asked the court to vacate its order setting the motion for hearing for the reason that the plaintiff and the child were residents of the state of Missouri and that the district court of Tulsa county was without jurisdiction to make the order. On a hearing of the motion the court sustained the same for the reason that the plaintiff and the child were at the time residents of the state of Missouri and that by reason thereof it had no jurisdiction to modify the supplemental decree and refused to hear the defendant's application. It is from this decree that the defendant has appealed, and in his assignments of error he alleges that the trial court erred in refusing to hear the motion of defendant to modify the decree.
The question here involved is whether or not after a party seeks the jurisdiction of the court of this state by filing a petition for divorce, alimony, and custody of a minor child and after judgment in her favor, can she, by removing to another state and taking the child with her, defeat...
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