Turner v. Saka

• Decision Date: 04 February 1974
• Docket Number: No. 7220,7220
• Citation: Turner v. Saka, 90 Nev. 54, 518 P.2d 608 (Nev. 1974)
• Parties: Tondelayo S. J. Jackson TURNER and Kenneth Turner, Appellants, v. Elias SAKA, Respondent.
• Court: Nevada Supreme Court

Page 608

518 P.2d 608

90 Nev. 54

Tondelayo S. J. Jackson TURNER and Kenneth Turner, Appellants, v.Elias SAKA, Respondent.

No. 7220.

Supreme Court of Nevada.

Feb. 4, 1974.

Rehearing Denied March 6, 1974.

Peter L. Flangas, Las Vegas, for appellants.

Robert N. Peccole, Las Vegas, and Joel D. Siegel, Newark, N.J., for respondent.

OPINION

GUNDERSON, Justice:

The mother of two 'illegitimate' children here challenges an order of our district court which honored an ex parte New Jersey court order as a matter of 'comity,' and on that basis granted the father'temporary' custody through a writ of habeas corpus.¹In our view, the New Jersey court's order is not entitled to 'comity,' because it was entered under circumstances offensive to our understanding of procedural due process.Hence, we reverse with instructions to dismiss the father's petition.We also deny an application the father has filed in this court, asking us to stay adoption proceedings in the court below.

From pleadings filed in our district court, it seems that about 1965respondent Saka, a married man in his forties, commenced a relationship with appellant Tondelayo (Jackson) Turner, seventeen, which resulted in the birth of a girl in 1966, and a boy in 1967.For disputed periods of time, Tondelayo left the children with Saka and his wife in New Jersey.Ultimately, she met and married appellantKenneth Turner in Nevada.Then, apparently, Mrs. Turner felt able to care for her children.Her husband desired to adopt them.Together, they journeyed to New Jersey, recovered possession of the children on December 26, 1972, and returned with them to Nevada.

On January 3, more than a week later, Saka and his wife filed a 'Verified Complaint' in the Superior Court for Monmouth County, New Jersey, purporting to institute a 'civil action' entitled: 'ELIAS SAKA and SOLANGE SAKA, his wife, Plaintiffs, vs. KENNETH TURNER and TONDELAYO S. J. JACKSON TURNER, his wife, Defendants.'In addition to rather vague allegations made on 'information and belief' which apparently were intended to show Mrs. Turner's bad character, the complaint's 'first count' recited that having 'abandoned' her children to the Sakas, she thereafter had 'fraudulently' regained their possession and, with Kenneth Turner, had 'illegally' removed them from New Jersey, contrary to their best interests.The 'second count' alleged that, as a result, the Turners were 'guilty of the tort of fraud and deceit herein.'The 'third count' incorporated prior averments, with the further allegation that '(t)his cruel abuse of the children by reason of their false imprisonment has caused plaintiffs considerable anguish, pain and suffering and is contrary to the best interests of the children.'The prayer asked (a) permanent care and custody; (b) temporary care and custody pending determination of the action; (c) immediate return of the children; (d) a permanent injunction against taking the children; (e) a temporary injunction; and (f) damages, costs and attorneys' fees.

Also on January 3, with the ostensible justification that an immediate emergency existed, the Sakas' counsel induced the New Jersey court to execute an 'Order to Show Cause,' based on assertions set forth in the Sakas' complaint and in affidavits filed therewith.²Entered ex parte without any hearing or notice whatever, this 'Order to Show Cause' purportedly required the Turners to deliver the children to Saka in New Jersey 'immediately,' enjoined them from taking the children from Saka's custody, and directed them to show cause on January 26 why such relief 'should not remain in full force and effect pending the final determination by this Court of the matter set forth in the Complaint herein.'³The 'Order to Show Cause' also purported to require the Turners to answer the complaint, ⁴ and to grant them leave to seek dissolution or modification of the ex parte order.⁵

On January 4, copies of the 'Order to Show Cause' were delivered to the Turners, together with copies of the Sakas' 'Verified Complaint.'Then, on January 8, Saka's 'Petition for Writ of Habeas Corpus' was filed in our Eighth Judicial District Court, alleging Saka legally entitled to the children's custody by virtue of the 'Order to Show Cause.'⁶Our district court's master calendar judge ordered the Turners to file a return to Saka's petition, which they did January 10, denying allegations concerning Mrs. Turner's character, supposed 'abandonment' of the children, and 'deceitful' methods of recovering them.In addition, the Turners' counsel filed legal Points and Authorities, contending that the New Jersey court's order was void for want of jurisdiction.Without treating that contention, on January 23 our district court foreclosed an evidentiary hearing and, relying principally on Lyerla v. Ramsey, 82 Nev. 250, 415 P.2d 623(1966), enforced the New Jersey court's order on the basis of 'comity.'

We believe our district court erred in failing to address the threshold issue of jusrisdiction.

1.We do not deem Lyerla v. Ramsay, cited above, to be controlling here.In that case, we held Nevada properly could ignore a Kansas order which purported to grant a father full custody of a minor child, in derogation of a binding Nevada order entered shortly before.⁷Discussion of 'comity' was unnecessary to our decision.See: 82 Nev. at 245, 415 P.2d at 625.

More important, in Lyerla v. Ramsay, we prefaced our discussion of 'full faith and credit' and of 'comity' with the observation that '(a)t the various times involved each court had due process jurisdiction to rule, as both parents appeared and the child was present within the state where a change in custody was sought.'82 Nev. at 251, 415 P.2d at 623.Here, when the New Jersey court entered its ex parte order, the facts were otherwise.

2.In Nevada and, it seems, under New Jersey law, custodial rights as to 'illegitimate' children repose in the mother from the time of birth, although such rights may be judicially terminated if she be proved unfit, and although both states permit the father to establish his paternity, and to have his parental obligations and visitation privileges declared.⁸The Turners contend that, with Mrs. Turner and her children in Nevada, the New Jersey court could not obtain jurisdiction to affect her parental rights.Cf.May v. Anderson, 345 U.S. 528, 73 S.Ct. 840, 97 L.Ed. 1221(1953).To the contrary, Saka contends that New Jersey could obtain in personam jurisdiction over the Turners, because New Jersey has a 'long-arm'statute applicable to the 'counts' in the Sakas' 'Verified Complaint.'Also, the Sakas contend that, inasmuch as the children previously were present there, New Jersey could assume in rem jurisdiction over them to provide for their well-being, even if out-of-state process would not provide such in personam jurisdiction over the Turners as would justify a money judgment.We need not resolve these questions, which would impel us to search for the New Jersey 'long-arm'statute alluded to by counsel, to consider its applicability to 'counts' in the 'Verified Complaint,' to ponder the constitutionality of applying it in these facts, and to reflect about the suggested 'in rem' power of the New Jersey court over Mrs. Turner's children.Here, our decision may rest on the fact that the Sakas gave Mrs. Turner no notice whatever, before asking the New Jersey court to enter its ex parte 'Order to Show Cause,' divesting her 'temporarily' of her parental rights.

For present purposes, we may assume the Sakas' 'Verified Complaint' states a cause of action, concerning which New Jersey has authorized service of process elsewhere; that, if such action be in personam, the Turners' venture into New Jersey to retrieve the children, was sufficient 'contact' with that state to justify personal service in Nevada; or that the children's prior presence provides a basis for jurisdiction in rem.Assuming all this, still we must consider whether the New Jersey court, on the basis of the ex parte application and showing made by Saka's counsel, could enter the order it did, prior to and not based on any service of process whatever, mandating Mrs. Turner to deliver her children to Saka, 3,000 miles from her home in Nevada.If that ex parte order was contrary to procedural due process, as we understand that concept, then we believe we must hold that our district court erred in honoring such order as a manner of 'comity.'

3.Regarding the question thus posed, decisions of this court, holdings of the United States Supreme Court, and (from what Saka's counsel tell us) New Jersey law also, all impel the conclusion that ex parte entry of the 'Order to Show Cause' was impermissible.In Maheu v. District Court, 88 Nev. 26, 493 P.2d 709(1972), we recently reiterated how this court historically has viewed ex parte orders:

'For a century, our settled law has been that any 'special' motion involving judicial discretion that affects the rights of another, as contrasted to motions 'of course,' must be made on notice even where no rule expressly requires notice to obtain the particular order sought, except only when this requirement is altered to meet extraordinary situations such as those concerned in NRCP 65(b).Pratt v. Rice, 7 Nev. 123(1871);NRCP 6(d).It is also fundamental that although an order's subject matter would lie within the court's jurisdiction if properly applied for, it is void if entered without required notice.Our authorities establishing this principle are as old as Wilde v. Wilde, 2 Nev. 306(1866), and as recent as Reno Raceway, Inc. v. Sierra Paving, Inc., 87 Nev. 619, 492 P.2d 127(1971).It makes no difference that a void order may concern a matter committed to the court's discretion, such as 'discovery,' regarding which the court might have granted protective orders had a proper application been made.Cf.Checker, Inc. v. Public Serv. Comn., 84 Nev. 623, 446 P.2d 981(1968);cf....