Wheeler v. Wheeler

• Decision Date: 07 May 1966
• Docket Number: No. 44429,44429
• Parties: Dorothy H. WHEELER, Appellee, v. John D. WHEELER, Appellant.
• Court: Kansas Supreme Court

Page 1

414 P.2d 1

196 Kan. 697

Dorothy H. WHEELER, Appellee, v. John D. WHEELER, Appellant.

No. 44429.

Supreme Court of Kansas.

May 7, 1966.

Syllabus by the Court

1. In proceedings under the Uniform Reciprocal Enforcement of Support Act, laws of the responding state are to be applied.

2. A court, which, in an action for divorce, makes an order, under the provisions of K.S.A. 60-1610(a), providing for the support of a minor child, retains jurisdiction of the matter of support to the exclusion of the jurisdiction of other courts of coordinate jurisdiction of this state.

3. The remedies for the enforcement of support provided for in K.S.A. 23-419 et seq., are in addition to and not in substitution for any other remedies for the enforcement of support provided for by the laws of this state.

4. Under the provisions of K.S.A. 23-435, a court of this state, when acting as a responding state, after receipt of proceedings under the Uniform Reciprocal Enforcement of Support Act from a court of an initiating state, on timely notice of the pre-existing and continuing jurisdiction of a sister court of this state over the matter of support has a duty to transfer the proceedings to the court of this state having such continuing jurisdiction.

5. The Uniform Reciprocal Enforcement of Support Act is within the rule that a uniform law which is remedial in nature is to be liberally construed with reference to the object to be obtained.

Raymond L. Spring, Topeka, argued the cause, and A. Harry Crane, Ward D. Martin, Arthur L. Claussen, Harvey D. Ashworth and John R. Hamilton, Topeka, were with him on the brief, for appellant.

Gerald L. Houghland, Asst. County Atty., argued the cause, and Hugh H. Kreamer, County Atty., and Robert C. Londerholm, Atty. Gen., were with him on the brief, for appellee.

KAUL, Justice:

This appeal is from an order entered in a proceeding brought under the Uniform Reciprocal Enforcement of Support Act. (K.S.A. 23-419 et seq.) The facts are stipulated.

John D. Wheeler (appellant-defendant) and Dorothy H. Wheeler (appellee-plaintiff) were married on August 5, 1945, at Phoenix, Arizona. They were divorced by the district court of Shawnee county on August 11, 1955. They are the parents of one child, Michael T. Wheeler, born October 3, 1947. The district court of Shawnee county had jurisdiction of the parties at the time of the divorce and awarded custody of Michael T. Wheeler to his mother and provided for his support by his father. Plaintiff is now a resident of Los Angeles county, California, and Michael presently resides with her. The defendant has remained in Kansas since the divorce and presently resides in Johnson county.

In February of 1962, the district court of Shawnee county approved an agreement between the parties relating to the custody, care and support of Michael and entered its order modifying its previous orders of August 11, 1955, in conformity with the terms of the agreement. The 1962 modification, based on the parties' agreement, provided for substantial support payments while Michael was in high school and also provided for college expenses if Michael should go to college. The modification order further provided that the duty to make support payments would terminate in the event Michael should drop out of high school for reasons other than health.

On May 18, 1965, the plaintiff filed this proceeding under the Uniform Reciprocal Enforcement of Support Act, referred to hereinafter as the act, in the superior court of Los Angeles county, California. Plaintiff alleged that defendant owed a duty of support to Michael T. Wheeler and prayed for an order to that effect. The California court found that defendant owed a duty of support as alleged and ordered the complaint transmitted to the district court of Johnson County, Kansas, for further proceedings under the act.

The defendant filed a motion to dismiss the complaint and proceedings thereunder on the grounds that the exclusive jurisdiction of the matter of the care, custody and support of Michael T. Wheeler was vested in the district court of Shawnee county insofar as any other court in the state of Kansas was concerned. Defendant further contended that the matter of any duty of support owed by him to Michael was res judicata under the order of the district court of Shawnee county and that the Uniform Reciprocal Enforcement of Support Act could not be interpreted to apply in a situation where the responding state under the act is also the forum state of the initial divorce and support proceedings between the same parties.

The defendant made all payments as required by the 1962 order of the district court of Shawnee county until April of 1964. At that time he learned that Michael had been dropped from high school in October of 1963 because of poor attendance. Defendant advised plaintiff that he was ceasing to make support payments in accordance with the provisions of the 1962 order of the district court of Shawnee county.

In June 1964 Michael came to Kansas and lived with his father until the end of January 1965, with the exception of two weeks in August of 1964 when he visited his mother. In January of 1965, by mutual consent, Michael T. Wheeler returned to California to live with his mother.

At the hearing on the motion to dismiss, defendant introduced evidence, which was undisputed, that neither appellee nor Michael T. Wheeler had made any request or demand upon dependant for support from the time such payments were terminated in April 1964 until the institution of the proceedings under the act in May 1965.

On July 6, 1965, the district court of Johnson county entered its order overruling the defendant's motion to dismiss and directing him to pay child support in the amount of $125.00 per month until the further order of the court.

The defendant appealed and designated as points: (1) The district court of Johnson county was without jurisdiction, (2) the act as applied by the Johnson county court is unconstitutional, and, (3) the duty of support owed by defendant is res judicata under the order of the district court of Shawnee county.

Since appellant resided in Kansas at the time of the institution of the support proceedings the laws of Kansas as responding state are to be applied in this case. K.S.A. 23-425 provides:

'Duties of support applicable under this act are those imposed or imposable under the laws of any state where the obligor (appellant herein) was present during the period for which support is sought.'

Other jurisdictions have adopted the same view in proceedings under the act. Freeland v. Freeland, Texas Civ.App., 313 S.W.2d 943; State of Calif., Dept. of Ment. Hyg. v. Copus, 158 Tex. 196, 309 S.W.2d 227; Rosenburg v. Rosenburg, 152 Me. 161, 125 A.2d 863; Daly v. Daly, 21 N.J. 599, 123 A.2d 3.

Therefore it becomes necessary to consider the defendant's duty of support imposed or imposable under the law of this state.

The district court of Shawnee county had jurisdiction of the parties and made provision for the custody and support of their minor child in the initial divorce proceeding in 1955. The continuing jurisdiction of the Shawnee county district court was exercised again in 1962 when the court entered its order modifying the original order. In Talbott v. Talbott, 194 Kan. 178, 398 P.2d 358, it was clearly stated that even though a court might lose jurisdiction to modify or change the custody of a child where the child is given to one of the parents in a divorce proceeding and later such parent leaves the state with the child and establishes a domicile in another state, the jurisdiction is retained as to the child support phase of the matter. See also Maston v. Maston, 171 Kan. 112, 229 P.2d 756; In re Pettit, 84 Kan. 637, 114 P. 1071.

The legislature departed from the usual rules of jurisdiction by making particular provisions for the jurisdiction of a court in providing for the custody and support of minor children stemming from a divorce action. K.S.A. 60-1610(a) provides in pertinent part as follows:

'The court shall make provisions for the custody, support and education of the minor children, and may modify or change any order in connection therewith at any time, and shall always have jurisdiction to make any such order to advance the welfare of a minor child if (i) the child is physically present in the county, or (ii) domicile of the child is in the state, or (iii) the court has previously exercised jurisdiction to determine the custody or care of a child who was at such time domiciled in the state.' (Emphasis added.)

It is clear in the instant case the jurisdiction of child support is retained by the Shawnee county district court. The question framed is whether or not jurisdiction of the Johnson county district court may be superimposed on that of Shawnee county by means of the Uniform Reciprocal Enforcement of Support Act. The issue is one of first impression in this jurisdiction. The plaintiff argues that under the provisions of K.S.A. 23-421 the remedies provided in the act are in addition to, and not in substitution for, any other remedy and that pursuant to this provision the district court of Johnson county has jurisdiction to enforce a support proceeding under the act, notwithstanding the original and continuing jurisdiction of the Shawnee county district court.

Both the appellant and the appellee rely on authorities from other jurisdictions. The plaintiff directs our attention to the case of Thompson v. Thompson, Fla., 93 So.2d 90, which arose under a similar factual situation. The parties were divorced in Volusia county circuit court. The wife was awarded custody of a minor child and moved to the state of Connecticut. She commenced proceedings under the act in the latter state and the Connecticut court addressed the proceedings to the circuit court of Duval county, Florida, which had become the husband's county of domicile in the meantime. The husband moved to dismiss...