Wear v. Wear

• Decision Date: 08 March 1930
• Docket Number: 29,309
• Citation: 130 Kan. 205,285 P. 606
• Parties: JUANITA C. WEAR, Appellee, v. THOMAS O. WEAR, Appellant
• Court: Kansas Supreme Court

285 P. 606

130 Kan. 205

JUANITA C. WEAR, Appellee, v. THOMAS O. WEAR, Appellant

No. 29,309

Supreme Court of Kansas

March 8, 1930

March 8, 1930, File

Appeal from Douglas district court; HUGH MEANS, judge. Opinion filed March 8, 1930. Affirmed.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. DIVORCE--Jurisdiction as to Custody of Minor Children--Foreign Domicile. It is the general rule that in an action for divorce a court does not have jurisdiction to adjudicate the custody of a minor child domiciled in another state.

2. SAME--Effect of Foreign Decree. It is the policy of the law of this state to give to a decree of divorce rendered in another state the same force and effect, in so far as that can be done, as though the decree had been rendered by a court of this state.

3. PARENT AND CHILD--Habeas Corpus for Custody--Jurisdiction of Court. In a habeas corpus proceeding brought by one of the parents against the other for the custody of their child, the court has before it the question of the rights of the parties as between themselves, and also has before it, if presented by the pleadings and the evidence, the question of the interest which the state as parens patriae has to promote the best interests of the child.

4. SAME--Right to Custody of Child--Effect of Foreign Decree--Test of Child's Domicile. A husband and wife with their child, resided in Oklahoma City, which place was their domicile. The husband took his personal belongings and came to Kansas with the purpose of establishing a residence and domicile for himself in this state, but leaving his household goods, his wife and child and their personal effects in Oklahoma City. Shortly thereafter the wife sent the child to Kansas to visit relatives with whom the husband was staying. Soon thereafter the wife brought, at Oklahoma City, an action for divorce against her husband. The husband appeared in that case and set up, among other things, that the child was visiting in Kansas. He contested the ground for divorce alleged against him by his wife. The court held the husband to be at fault, that the wife was a proper person to have the custody of the child, that the child was domiciled in Oklahoma, and was visiting in Kansas, and entered a decree of divorce in favor of the wife and gave her the custody of the child. The child was not present in Oklahoma at the time the action for divorce was brought, or at the time it was tried. Soon thereafter the wife came to Kansas and brought a habeas corpus proceeding against her husband for the custody of the child, relying upon the decree in the Oklahoma case. Respondent offered no evidence that the mother was not a proper person to have the custody of the child, or that it was for the best interests of the child that it remain with the respondent, or others, or that there was any changed condition since the time of the decree in Oklahoma. It is held: First, that the question before the court was the right to the custody of the child as between the father and mother. Second, that the decree of the Oklahoma court was binding as between those parties as to all matters placed in issue and determined by that court. Further held, that the husband, by coming to Kansas under the circumstances stated, did not change the domicile of his wife or his child from Oklahoma City, and the fact that the child was sent by the mother to visit relatives in Kansas at a place where the father was staying did not change the domicile of the child from Oklahoma City to Kansas.

C. A. Smart, of Lawrence, for the appellant.

Walter G. Thiele and H. H. Asher, both of Lawrence, for the appellee.

OPINION

HARVEY, J.:

This is an appeal by respondent in a proceeding for habeas corpus brought for the custody of a child. The petitioner is the mother and respondent is the father of the child in question. The point presented is that of the domicile of the child, and appellant's complaint is that the trial court followed the decree of the court of another state, deeming itself bound by such decree, instead of trying out the issue presented by the pleadings, among which was that of the domicile of the child.

The facts disclosed by the record pertinent to our present inquiry may be thus stated: Thomas O. Wear and Juanita C. Wear were husband and wife, and the parents of Thomas O. Wear, Jr., a boy now about eight years of age. They had lived at various places in Oklahoma and Missouri when the husband had work, and in the months early in 1929 were living in Oklahoma City. Some time in April, 1929, Thomas O. Wear took his personal effects, and leaving his wife, child and household goods in Oklahoma City, came to the home of his brother-in-law and sister, Mr. and Mrs. Ralph L. Coleman, with whom his parents resided, near Lawrence, in Douglas county, Kansas. In June, 1929, Mrs. Wear sent the boy to Lawrence, Kan.; the father met the boy there and took him to the home where he was staying. The circumstances and understanding, if any, of the boy's coming to Kansas enter into the question of his domicile and will be later discussed.

In July, 1929, Mrs. Wear brought, in the district court at Oklahoma City, a divorce suit against her husband, on the ground of gross neglect of duty, in which she asked for the custody of the child in question. The defendant, Thomas O. Wear, appeared in that case, and on August 1, 1929, filed an application for an order restraining the plaintiff from molesting or interfering with the custody of the child pending the action, setting out that plaintiff was seeking to obtain such custody, and averred that the domestic difficulties between the parties were the fault of plaintiff, and that plaintiff was not a fit and proper person to have the custody of the child, all of which defendant would show at the hearing of the action on its merits. The restraining order was granted ex parte. When plaintiff learned of this she moved that it be set aside, and upon the hearing of that motion, August 3, it was set aside. Defendant later, on August 19, filed a general demurrer to plaintiff's petition. This came on for hearing August 22, was overruled and held to be frivolous, and on defendant's request he was given time to answer. On August 23 he filed an answer in which he denied generally the grounds for divorce charged against him in plaintiff's petition, and at some length set out his claims with respect to their domestic troubles, and particularly denied and explained the charge of nonsupport made against him. As to how the child came to be with him the answer stated, "that on or about the said 5th day of June, 1929, this defendant paid the railroad fare for his said child, Thomas Orville Wear, Jr., to visit him and said child's grandparents, at Independence [perhaps Lawrence was meant], Kan. . . ." The prayer was that plaintiff take nothing by reason of her petition and that defendant have such relief as in law and equity he was found entitled to receive. The action was tried on its merits September 14, 1929, both parties appearing in person and by their respective counsel. The court heard the evidence, found defendant had been guilty of gross neglect of duty, and that plaintiff was without fault, and granted to her a divorce. The court also found plaintiff to be a fit and proper person to have the custody of the child, Thomas O. Wear, Jr., and awarded such custody to her. The court further found that "about June 5, 1929, the plaintiff sent Thomas O. Wear, Jr., to Lawrence, Kan., for a visit with his grandparents, the father and mother of the defendant, with the agreement that said minor child would be returned to Oklahoma City in time for the school term commencing in September, 1929," and "that at the time of the institution of this suit said minor child was a resident of Oklahoma county, Oklahoma, and that this court has jurisdiction of the person of said minor child." And the court "ordered that the defendant, Thomas O. Wear, shall return said minor child, Thomas O. Wear, Jr., to the jurisdiction of this court within ten days from this date and deliver said child over to the plaintiff, Juanita C. Wear."

The child was not actually present in Oklahoma at the time the divorce suit was brought there, nor at the time the judgment and decree was rendered in that case; in fact, he was not in Oklahoma at any time after about June 5, 1929. Thomas O. Wear did not comply with the order of the Oklahoma court that he return the child to the jurisdiction of that court and deliver him to the plaintiff in that action, but he did return to the home of his brother-in-law near Lawrence, Kan.

On September 21, 1929, Juanita C. Wear filed in the district court of Douglas county her petition for a writ of habeas corpus, in which she alleged that she resides at Oklahoma City; that she is the mother, and Thomas O. Wear the father of the child in question; that she had the care and custody of the child in the state of Oklahoma; that on June 5, 1929, she permitted the child to go to Lawrence, Kan., for the purpose of visiting its father and grandmother and other relatives in Douglas county, Kansas, but with the specific understanding that the child was to be returned to Oklahoma City about September 1, 1929, so that he might enter school, and "that the child is not now and never was a resident of or domiciled in the state of Kansas, but was in the state of Kansas temporarily and for the purpose of a visit as hereinbefore alleged." She also pleaded the divorce action and set out a copy of the decree of the Oklahoma court in that case as an adjudication of her right to the custody of the child. She named as respondents Ralph L. Coleman and Thomas O. Wear. Coleman filed a response in which he denied he was restraining the child of his liberty, and alleged...