Villaume v. Villaume

• Decision Date: 21 February 1978
• Docket Number: No. 38741,38741
• Citation: 564 S.W.2d 290
• Parties: Christine VILLAUME, Petitioner-Respondent, v. Louis VILLAUME, Respondent-Appellant. . Louis District, Division Four
• Court: Missouri Court of Appeals

Page 290

564 S.W.2d 290

Christine VILLAUME, Petitioner-Respondent, v. Louis VILLAUME, Respondent-Appellant.

No. 38741.

Missouri Court of Appeals, St. Louis District, Division Four.

Feb. 21, 1978.

Motions for Rehearing and/or Transfer to Supreme Court

Denied April 10, 1978.

Application to Transfer Denied May 9, 1978.

Lashly, Caruthers, Thies, Rava & Hamel, Michael C. Walther, Judson W. Calkins, St. Louis, for respondent-appellant.

Green, Hennings & Henry, Lewis C. Green, Richard D. Lageson, St. Louis, for petitioner-respondent.

SIMEONE, Chief Judge.

I.

This is an appeal by appellant, Louis Villaume, from a final order of the circuit court of St. Louis County entered on October 22 1976, wherein the court (1) granted to the respondent-wife, Mrs. Christine Villaume ¹, custody of their two children, (2) ordered the appellant-husband, Louis Villaume, to pay child support for the children, attorneys' fees and expenses and (3) overruled Mr. Villaume's "motion to quash service of process and dismiss" the wife's "petition" seeking permanent custody of the two children. For reasons hereinafter stated, we reverse the judgment.

II.

The facts giving rise to this proceeding are as follows. Christine and Louis Villaume were married in 1968 in California. They lived together as husband and wife. Two boys were born of the marriage Brett, age six at the time of the proceedings below, and Nicolas, age five. The parties separated in January, 1975. Divorce proceedings were begun in California by Mrs. Villaume.

On February 14, 1975, Mr. and Mrs. Villaume entered into a settlement agreement in California relating to "all rights and obligations" between them which included their respective property and custodial rights. ²

The agreement recognized that the custody of the minor children or its modification is subject to a determination by a court of competent jurisdiction, but

"(i)f either of us seek to enforce or modify the provisions relative to the custody or support of our minor children, we acknowledge that the issue will have to be resolved by the court of competent jurisdiction, and therefore agree that the Superior Court of the State of California, in and for the City and County of San Francisco, shall at all times have continuing jurisdiction to enforce or modify a custody order pertaining to the children or their support."

On April 22, 1975, the Superior Court ordered an interlocutory decree of divorce. As a part of that decree the court (1) ordered that the custody and control of the two minor children be awarded to Mr. and Mrs. Villaume "in joint legal custody" but that the children would reside with the father during the calendar school year and with Mrs. Villaume during school vacations, (2) ordered the husband to pay support for each child when in the custody of the mother and (3) retained jurisdiction over all questions regarding custody and support of the two children.

In June, 1976, at the end of the school year, Mrs. Villaume, in accordance with the California order, took custody of the two sons and came to Kirkwood, Missouri, where she was raised. Trouble arose in August, 1976, when the parties had a conversation about the boys.

On August 20, 1976, a few days before Mr. Villaume came to St. Louis to obtain the custody of the children at the end of the summer season, Mrs. Villaume filed a "petition" in the circuit court of St. Louis County praying (1) for a temporary order that the custody of the children remain with her, (2) for an order that Mr. Villaume be restrained from interfering with her custody and from removing the children from her custody, (3) for a preliminary injunction continuing the temporary restraining order, (4) for "general custody" of the two children with reasonable visitation by the husband after a final hearing and (5) for an order that Mr. Villaume pay support, attorneys' fees and expenses. The petition alleged that Mrs. Villaume resided in Kirkwood, Missouri, that she had lawful custody of the children and that they were residing with her and "are domiciled there." She alleged that Mr. Villaume "now resides in Lake Charles, Louisiana," that since the date of the California divorce "circumstances relevant to the questions of custody and welfare of the two aforesaid children have changed" and that both parents and the children no longer live in California. She contended that Mr. Villaume had violated the California decree in several respects and that the best interests of the children would be served "by an order of this Court awarding their custody generally to petitioner (Mrs. Villaume) with reasonable visitation rights in respondent (Mr. Villaume)."

On the same date, the trial court ordered that the custody of the two children remain with Mrs. Villaume and enjoined Mr. Villaume from removing the two boys from St. Louis County. The court also entered an order that Mr. Villaume appear on September 10, 1976, and show cause why a preliminary injunction should not issue.

On September 10, 1976, the date set for a hearing for a preliminary injunction in the trial court, Mr. Villaume filed a "motion to quash service of process and dismiss" the "petition" for "lack of jurisdiction over the person" of Mr. Villaume "and lack of jurisdiction over the subject matter of the petition." As grounds therefor he stated that "(i)t was arranged" that on or about August 22 he would fly to St. Louis to reacquire custody of the children but when he arrived at the airport on August 23 ³ the boys were not there. He found "a sheriff's deputy in the company of petitioner waiting to serve him with process in the lawsuit to which this motion is directed." He was served with summons. In his motion he stated that he remained at the airport some six hours, only long enough to get an airplane to San Francisco where he resides and where the children are enrolled in school. He alleged that he was "lured" into Missouri by Mrs. Villaume for the purpose of subjecting him to personal service. ⁴ The motion concluded: "Because of the continuing jurisdiction of the California Superior Court . . . over questions of custody and support of the two minor children . . . this court is without jurisdiction over the subject matter of this cause."

In his motion and affidavit in support, Mr. Villaume incorporated certain orders entered on August 26, 1976, by the Superior Court of California wherein that court ordered Mrs. Villaume to appear on September 17, 1976, and show cause why she should not be cited for contempt and why exclusive custody should not be given to Mr. Villaume. The California court also ordered that pending a hearing the husband "shall have exclusive custody" of the children, both parties are ordered to produce the children at the hearing and each is restrained from "interfering with their scheduled enrollment in their San Francisco school in (sic) Sept. 7, 1976" or removing them from the State of California prior to said hearing. Service was had on Mrs. Villaume on September 14, 1976.

Then, on September 16, 1976, the attorney for Mrs. Villaume served upon the attorney for Mr. Villaume a notice to take his deposition on September 23 and requested that Mr. Villaume produce certain documents. The attorney for Mr. Villaume thereafter sought a protective order from the court below alleging that Mr. Villaume was a resident of California and prayed for an order that discovery not be had. In opposition to the protective order, Mrs. Villaume filed an affidavit. ⁵

The protective order was apparently overruled; on September 22, 1976, the trial court ordered that Mr. Villaume appear for the taking of his deposition to be held October 4, 1976.

On September 27, 1976, Mrs. Villaume filed a motion in the trial court for an order to show cause why Mr. Villaume should not be held in contempt for the reason that on September 25, in violation of the court's restraining order of August 20, he physically removed the children from St. Louis County by driving them away in a van from Kirkwood.

On September 30, 1976, Mr. Villaume filed in this court his petition for a writ of prohibition, which was amended on October 1, 1976, praying for a writ (1) "commanding" the respondent judge to dismiss his order requiring Mr. Villaume to appear for deposition at the instance of Mrs. Villaume, (2) "commanding" the respondent judge to dismiss the petition filed against Mr. Villaume for change of custody, (3) ordering the respondent judge to refrain from proceeding further in the pending cause, and (4) "commanding" the respondent to dismiss his order to show cause why Mr. Villaume should not be held in contempt. In the amended petition for writ of prohibition, Mr. Villaume admitted that, on or about September 25, 1976, in possession of the California order giving him "exclusive" custody of his two minor children, he came to St. Louis and "picked up" his children taking them outside Missouri. He further admitted that, since the entry of the order in California giving him "exclusive" custody of the boys, he "has established residence . . . in Lake Charles, Louisiana, where his two minor children reside with him." ⁶

This court denied the petition for the writ of prohibition without opinion.

On October 7, 1976, Mrs. Villaume filed a motion with the trial court to impose sanctions upon Mr. Villaume because he failed to appear at the deposition hearing on October 4.

Under date of October 13, 1976, an order was issued by the judge of the Superior Court of California. The order related that the matter came on for hearing on September 17, 1976, and that Mr. Villaume was present but Mrs. Villaume was not. "Both oral and documentary evidence" was taken and Mr. Villaume was examined and cross-examined. An attorney for Mrs. Villaume was present. The California court found (1) that California continues to have and "does exercise jurisdiction over both parties" despite Mrs. Villaume's contention that her attorneys appear specially; (2) that...