Walker, In re

• Decision Date: 25 June 1964
• Citation: 228 Cal.App.2d 217,39 Cal.Rptr. 243
• Court: California Court of Appeals Court of Appeals
• Parties: In re Sherwood Maurice WALKER on behalf of Sharel Lynn Walker on Habeas Corpus. Sherwood Maurice WALKER, Petitioner, Defendant and Appellant, v. Carma Ann BOURLAND, Plaintiff and Respondent. Civ. 311.

Page 243

39 Cal.Rptr. 243

228 Cal.App.2d 217

In re Sherwood Maurice WALKER on behalf of Sharel Lynn Walker on Habeas Corpus.

Sherwood Maurice WALKER, Petitioner, Defendant and Appellant, v. Carma Ann BOURLAND, Plaintiff and Respondent.

Civ. 311.

District Court of Appeal, Fifth District, California.

June 25, 1964.

S. B. Gill, Dustin N. Jameson and James G. Bowles, bakersfield, for appellant.

Sims & Solomon, Gabriel W. Solomon, Bakersfield, for respondent.

RALPH M. BROWN, Justice.

This appeal originated in habeas corpus proceedings brought by a father against a mother to obtain possession of a child by virtue of a custody award made in Texas and a motion of the mother to have custody reaffirmed in her in accordance with the custody provisions of a prior California divorce decree. From an order awarding custody to the mother, the father has appealed.

The facts are as follows: Sherwood Maurice Walker, hereinafter referred to as petitioner, and Carma Ann Bourland, formerly Walker, hereinafter referred to as respondent, were married in June 1953. A daughter, Sharel Lynn Walker, was born to them in September 1954. Respondent subsequently instituted a divorce action against petitioner in the Superior Court of Kern County, California, and, on November 26, 1956, an interlocutory decree granted her a divorce and awarded custody of Sharel to her, petitioner to have the right of reasonable visitation with his daughter with no prohibition against removing her from the State of California. These provisions were carried into a final decree of divorce entered on January 27, 1958.

At the time of separation Sharel was 9 months of age. Respondent returned with the baby to the home of her parents, Max and Rachel Read, in Bakersfield. She obtained gainful employment and Mrs. Read cared for the baby during the mother's working hours.

Petitioner married Sylvia Pike in February 1959. Mike and Wesley, two sons born to them, and Sylvia's daughter, Linda, issue of a prior marriage, reside with them in texas.

Respondent married John Bourland in September 1959, and shortly thereafter removed to Santa Barbara, California, Stephanie, a daughter, was born to them in June 1960. Sharel, the child subject of this controversy, remained primarily in the physical possession of the Reads.

In June 1960, petitioner and his second family visited the Reads and Sharel in Bakersfield for about a week, then, with the knowledge of respondent and the consent of the Reads, took Sharel for a two-week visit to their home in Texas. In June 1961, under similar circumstances, Sharel visited in petitioner's Texas home for six to seven weeks. In June 1962, again with the knowledge of respondent and the consent of the Reads, petitioner removed the child to Texas for a summer visit. However, on this occasion he refused to return the child to California or deliver her to either the Reads or the respondent when they journeyed to Texas for the purpose of obtaining a return of the child. He initiated proceedings in Texas to effect a custodial change. Respondent sought to obtain possession of the child by an application for a writ of habeas corpus. These proceedings having been consolidated, the Texas court, after a full hearing and with both parents and the child before it, found that the child's best welfare required that it award custody to petitioner. At that time the child was both domiciled and resident in California although she was physically visiting in Texas. There was an express finding that petitioner was a fit person to have custody and no finding, express or implied, that respondent was unfit or not a suitable custodian. The decree, entered on October 9, 1962, awarded custody of Sharel to petitioner, specified respondent's rights of visitation solely within the State of Texas and prohibited removal of the child from that state. In violation of that prohibition respondent, aided by Rachel Read, removed Sharel to California about November 11, 1962. Respondent was indicted by a Texas Grand Jury, charged with kidnapping and was arrested in California about December 4, 1962. Subsequently, the State of California denied a request for extradition to Texas. The criminal charge against respondent is presumably still pending in Texas. Her appeal from the Texas decree was dismissed by the Court of Civil Appeals of Texas for failure to return the child to Texas pending determination of the appeal.

In April 1963, petitioner initiated the present proceedings in Kern County by an application for a writ of habeas corpus. On the fifth day of hearing thereon an order was made pursuant to stipulation made in open court permitting respondent to file in the original divorce action a motion for custody, child support and other relief, consolidating the motion with the habeas corpus proceeding for hearing, all testimony theretofore received and all evidence theretofore adduced applying thereto.

At the conclusion of the sixth day of hearing, the court awarded custody of the child to respondent. Petitioner appealed.

Petitioner first contends that the trial court erred in failing to give full faith and credit to the Texas decree. It is argued that under the full faith and credit clause of the Federal Constitution, a custody decree of a sister state is res judicata as to all issues raised and determined; that, in order to justify a change of custody a showing of changed circumstances must be made; and that a California court should not grant relief to a parent who has brought a child into this state in violation of the foreign decree.

Full Faith and Credit

The rules governing application of the full faith and credit clause are not generally applied strictly by the courts of this state to custody decrees of other states and countries. This is so because a custody decree is unique and does not fit itself within the mold cast by the full faith and credit clause. Its very nature precludes that degree of permanence and finality requisite for strict application of principles commanded by that clause. Such decrees are generally enforced as a matter of comity (Foster v. Foster, 8 Cal.2d 719, 726, 68 P.2d 719; In re Memmi, 80 Cal.App.2d 295, 299, 181 [228 Cal.App.2d 222] P.2d 885; In re Gi, 134 Cal.App.2d 479, 484, 286 P.2d 364). As has frequently been said, "The child being within this jurisdiction, the courts of this state are not precluded by any judgment or order of a sister state from inquiring into and determining in its own behalf what are the best interests of the child." (Foster v. Foster, supra, 8 Cal.2d at p. 726, 68 P.2d at 722; see Crabtree v. Superior Court, 197 Cal.App.2d 821, 828-829, 17 Cal.Rptr. 763; Dotsch v. Grimes, 75 Cal.App.2d 418, 171 P.2d 506.

The case of Leathers v. Leathers, 162 Cal.App.2d 768, 328 P.2d 853, contains a comprehensive discussion of the effect the courts of this state have given to foreign decrees involving custody of children in varying factual situations. At page 775 of 162 Cal.App.2d, at page 857 of 328 P.2d the court said:

'Interestingly enough, the bulk of cases in which recognition of a decree of a sister state was refused, although there was no showing of changed circumstances, involved foreign decrees which attempted to affect custody lawfully held by a resident of the forum or a bona fide resident child. [Citations.]'

(See also Brown v. Brown, 104 Cal.App.2d 88, 92-93, 230 P.2d 651.

The Changed Circumstances Rule

A narrower view of the 'changed circumstances' rule was taken in the older cases where it was held that an essential ingredient of a custodial change hearing was a showing by the movant of a substantial change of circumstances affecting the welfare of the child. (Stagliano v. Stagliano, 125 Cal.App.2d 343, 270 P.2d 91; In re Marshall, 100 Cal.App. 284, 286, 279 P. 834; Moon v. Moon, 62 Cal.App.2d 185, 186, 144 P.2d 599; Washburn v. Washburn, 49 Cal.App.2d 581, 587, 122 P.2d 96; Olson v. Olson, 95 Cal.App. 594, 597, 272 P. 1113.)

But many California cases, both old and new indicate a broader view and a showing of changed circumstances is no longer an inflexible requirement. The rule is now said to be subject to exceptions where the welfare of the child requires it. (Goto v. Goto, 52 Cal.2d 118, 123, 338 P.2d 450; Foster v. Foster, supra, 8 Cal.2d 719, 728, 68 P.2d 719; Immerman v. Immerman, 176 Cal.App.2d 122, 125, 1 Cal.Rptr. 298.) In Kelly v. Kelly, 75 Cal.App.2d 408, 415, 171 P.2d 95, 99, it is said, '* * * the question of 'changed circumstances' is but another form of evidence which the court may consider in the exercise of its discretion to hear and decide the question of modification of custody orders previously made.' In Dotsch v. Grimes, supra, 75 Cal.App.2d 418 at page 421, 171 P.2d 506 at page 507, the court said: 'If, as it has been repeatedly held, the welfare and best interest of the child are the paramount concern of the court, then what governs is not the rule of 'changed circumstances,' but what at the time of the hearing is, in the sound discretion of the court, for the child's welfare.' And in Stack v. Stack, 189 Cal.App.2d 357, at page 370, 11 Cal.Rptr. 177, at page 187 it was said: 'The mother's principal reliance is upon the change of circumstances 'rule.' As we have seen, it is no longer a rule, if it ever was one.' (See Hoffman v. Hoffman, 197 Cal.App.2d 805, 814, 17 Cal.Rptr. 543.)

Several recent cases have held that where, as in this case, the trial court has modified a prior custody decree, the rule that the movant must show a change of circumstances is inapplicable. It is said that the rule applies only where the court has refused a modification and it is contended the denial constituted an abuse of discretion. To justify the contention there must be a showing of changed circumstances (Fauble v. Fauble, 219 Cal.App.2d 682, 33 Cal.Rptr. 470; Hoffman v. Hoffman, supra, 197 Cal.App.2d 805, 811, 17 Cal.Rptr. 543; Stack v. Stack, supra, 189 Cal.App.2d 357, 368-370, 11 Cal.Rptr. 177; ...