Ward v. Ward

Decision Date14 September 2001
Docket NumberNo. 85,352.,85,352.
Citation272 Kan. 12,30 P.3d 1001
PartiesVANITA RUTH WARD, Petitioner, v. STANLEY T. WARD, Respondent/Appellee. IN THE MATTER OF THE GUARDIANSHIP/CUSTODY OF JACLYNN PAIGE WARD, a Minor, by and through her maternal aunt and uncle as next friend, STANLEY R. GATELEY and TINA GATELEY, Petitioners/Appellants, v. STANLEY T. WARD, DAVE WARD, and DONNA WARD, Respondents/Appellees. IN THE MATTER OF THE PETITION FOR APPOINTMENT OF GUARDIAN AND CONSERVATOR FOR JACLYNN WARD.
CourtKansas Supreme Court

Brenda J. Bell, of Seaton, Miller, Bell & Seaton, LLP, of Manhattan, argued the cause, and Charlene Brubaker, of Clinkscales & Brubaker, P.A., of Hays, was with her on the brief for appellants.

Daniel C. Walter, of Ryan, Walter & McClymont, Chtd., of Norton, argued the cause and was on the brief for appellees.

The opinion of the court was delivered by

LARSON, J.:

We begin our opinion, in this complex and troubling appeal involving the guardianship and custody of a now 7-year-old little girl, cognizant of the admonition of Chief Justice Frank D. Celebrezze of the Ohio Supreme Court in In re Wonderly, 67 Ohio St.2d 178, 188, 423 N.E.2d 420 (1981), where in a contest over a guardianship, he said:

"While statutes can be amended and case law can be distinguished or overruled, we take judicial notice of the fact that children grow up only once. When a mistake is made in a custody dispute, the harmful effects are irrevocable."

The appeal presented to us is by the minor child's maternal uncle and aunt, Stanley R. Gateley and Tina Gateley, of Gilmore, Texas, who contend that the Kansas guardianship proceedings involving Jaclynn Paige Ward are jurisdictionally defective and a custody decree of an Oklahoma court must be recognized and enforced in Kansas against Dave Ward and Donna Ward who were designated guardians and conservators of Jaclynn Paige Ward by her father, Stanley T. Ward, when he moved her from Oklahoma to Kansas following the death of her mother, Vanita Ruth Ward, in an accident.

Statement of facts

The following facts were stipulated by the parties in the trial court:

"1. Jaclynn Ward was born February 28, 1994, in Clinton, Custer County, Oklahoma, to Vanita Ruth Ward and Stanley T. Ward, and she resided in Weatherford, Custer County, Oklahoma, from the time of her birth until January 23, 2000.
"2. Vanita Ruth Ward and Stanley T. Ward were divorced in the District Court, 2nd Judicial District, Custer County, Oklahoma, Case No. FD-98-150 captioned, Vanita Ruth Ward vs. Stanley T. Ward.
"3. A Journal Entry of Judgment and Decree of Divorce was filed on October 21, 1999, in the Custer County, Oklahoma District Court Case No. FD-98-150, wherein the Court determined that Vanita Ruth Ward was a `fit and proper person to be awarded exclusive care and custody of the minor child, [Jaclynn Paige Ward, born February 28, 1994] subject to [Stanley T. Ward's] restricted visitation rights. Said visitation was to be for a maximum of three afternoon visitations per week, each being a maximum of three (3) hours in length.'
"4. On January 11, 2000, Vanita Ruth Ward was killed in an accident.
"5. Thereafter, Jaclynn Ward remained in the physical custody of her grandmother, Georgia Gateley, and her maternal aunt and uncle, Tina Gateley and Stanley R. Gateley, in Weatherford, Oklahoma except for those periods of time when Stanley T. Ward had physical custody of her.
"6. After Vanita Ward's death on January 11, 2000, Stanley T. Ward had physical custody of Jaclynn Ward for 2 hours on January 13, 2000; for 2 hours on January 14, 2000; for 2 hours on January 16, 2000; and for 2 hours on January 19, 2000. On January 23, 2000 Stanley T. Ward stated that he wished to have physical custody of Jaclynn for 3 hours and the Gateleys agreed. Stanley T. Ward did not return Jaclynn Ward to the Gateleys at the end of 3 hours.
"7. On January 23, 2000, David and Donna Ward flew from Norton, Kansas, to Weatherford, Oklahoma, and returned to Norton, Kansas, with Stanley T. Ward and Jaclynn Ward.
"8. Stanley Ward resided in Weatherford, Oklahoma, as of January 24, 2000.
"9. On January 24, 2000, Stanley T. Ward as surviving natural guardian of Jaclynn Ward, filed a Petition in the District Court of Norton County, Kansas, Case No. 00-P-02, seeking to have David Ward and Donna Ward, his brother and sister-in-law, appointed as co-guardians and co-conservators of Jaclynn Ward. At the time, Jaclynn Ward was physically present in Norton County, Kansas and was in the physical custody of Stanley T. Ward. At this point, the Gateleys had filed nothing in Oklahoma.
"10. Notice of the hearing on the petition was never provided to Georgia Gateley, Tina Gateley or Stanley Gateley, after the Norton County District Court found no notice was necessary.
"11. The District Court of Norton County, Kansas, issued an Order Appointing David Ward and Donna Ward as Co-Guardians on January 24, 2000, in Norton County District Court Case No. 00-P-02. At the time, Jaclynn Ward was physically present in Norton County, Kansas and was in the physical custody of Stanley T. Ward.
"12. Letters of Guardianship were issued to David Ward and Donna Ward by the District Court of Norton County, Kansas, on January 24, 2000, in Norton County District Court Case No. 00-P-02. At the time, Jaclynn Ward was physically present in Norton County, Kansas and was in the physical custody of Stanley T. Ward.
"13. On January 25, 2000, the Norton County District Court issued an Order Nunc Pro Tunc in Case No. 00-P-02 correcting the spelling of the Ward's first name from `Jacqueline' to `Jaclynn.'
"14. On January 31, 2000, the Honorable Jacqueline P. Duncan, Judge of the District Court of Custer County, Oklahoma, conferred with the Honorable Wilda Brown, District Magistrate Judge of the Norton County, Kansas, District Court, and Judge Duncan advised Judge Brown that Oklahoma intended to retain its jurisdiction over Jaclynn Ward. Judge Brown refused to dismiss the Kansas guardianship proceeding.
"15. On February 29, 2000, Stanley R. Gateley, Tina Gateley and Georgia Gateley filed a `Special Appearance and Petition to Dismiss for Lack of Jurisdiction and to Enforce Oklahoma Court Orders,' in Norton County District Court Case No. 00-P-02.
"16. On January 26, 2000, Stanley R. Gateley and Tina Gateley filed a Petition in the Custer County, Oklahoma District Court, Case No. PG-2000-3, seeking guardianship of Jaclynn Ward.
"17. On February 3, 2000, after giving notice to David Ward and Donna Ward, and after attempting unsuccessfully to give notice to Stanley T. Ward, the District Court of Custer County, Oklahoma, held a hearing in Case No. PG-2000-3 entitled, In the Matter of the Guardianship/Custody of Jaclynn Paige Ward, a minor, by and through her maternal aunt and uncle as next friend, Stanley R. Gateley and Tina Gateley, Plaintiff, vs. Stanley T. Ward, Dave Ward and Donna Ward, Defendants (`the Oklahoma guardianship proceedings') and granted co-guardianship of Jaclynn Ward to Stanley R. Gateley, Tina Gateley and Georgia Gateley. Stanley T. Ward, Dave Ward and Donna Ward appeared at the hearing specially for purposes of objecting to Oklahoma's jurisdiction and arguing a motion to dismiss filed with the Custer County, Oklahoma District Court on February 3, 2000, which motion was denied.
"18. In February 29, 2000, Stanley R. Gateley caused a certified copy of the Order issued in the Oklahoma guardianship proceedings, Custer County Oklahoma, Case No. PG-2000-3, to be filed in the District Court of Norton County, Kansas, as Case No. 00-D-20.
"19. On March 3, 2000, Stanley T. Ward, Dave Ward and Donna Ward filed an appeal to the Oklahoma Supreme Court appealing the court's ruling in Custer County, Oklahoma, Case No. PG-2000-3.
"20. On March 7, 2000, Stanley T. Ward, Dave Ward and Donna Ward filed a Motion to Cancel Registration of Out of State Custody Decree and/or to Stay Enforcement thereof in Norton County District Court Case No. 00-D-20.
"21. On February 29, 2000, Stanley R. Gateley caused a certified copy of the Journal Entry of Judgment and Decree of Divorce issued by the Custer County, Oklahoma District Court, Case No. FD-98-150, to be filed in the District Court of Norton County, Kansas, as Case No. 00-D-19.
"22. On March 7, 2000, Stanley Thomas Ward, David Stephen Ward and Donna Marie Ward filed a Motion to Cancel Registration of Out of State Custody Decree and for Stay of Enforcement in Norton County, Kansas, District Court Case No. 00-D-19."

The trial court in an additional finding added:

"24. Although not a stipulated fact, the Court notes from the Order issued by the District Court of Custer County, Oklahoma, in Case No. PG-2000-3 that the Petitioners, Stanley R. Gateley and Tina Gateley are residents of Gilmore, Texas, who in said case prayed for an order for the immediate custody of Jaclynn Paige Ward."

It is not a part of the record below and was objected to by the Gateleys, but it was stated at oral argument that Stanley T. Ward was at that time a resident of Norton County, Kansas. This is not considered in our decision.

The Gateleys filed a supplement to their brief pursuant to Kansas Supreme Court Rule 6.09 (2000 Kan. Ct. R. Annot. 41), objected to by the Wards, setting forth the opinion of the Oklahoma Supreme Court dated May 8, 2001, in the case captioned S.W. v. Duncan, 24 P.3d 846 (Okla. 2001).

Trial court's conclusions of law and findings

After receiving briefs and replies, and hearing arguments from the parties, the trial court rendered a written opinion which concluded that, as stated in In re Marriage of Osborn, 21 Kan. App. 2d 374, 379, 901 P.2d 12 (1995), Kansas recognizes the parental preference doctrine and holds that "when a divorce decree gives custody to a parent who dies, the right of custody automatically reverts to the surviving parent subject to the condition that he or she is a fit and suitable person to have custody." Further, Turley v....

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