Gourley v. George , 601 P.2d 94 ( 1979 )

HODGES, Justice.

This is an application to assume original jurisdiction and a petition for writ of prohibition and/or mandamus to vacate the order of the district court which modified a decree of divorce granted in New Mexico.

Linda Gourley, the petitioner, and Vincent H. Gourley III, the respondent, were divorced by the District Court of Lea County, New Mexico, July 8, 1969. Linda Gour-ley was granted an absolute decree of divorce, and awarded custody of the minor son of the parties. The father was awarded reasonable visitation rights. After the decree of divorce was entered, the father moved to Carter County, Oklahoma, and the mother and the child of the parties moved to Houston, Texas. The initial decree of divorce permitted reasonable visitation, and the mother allowed the father custodial visitation with the child from time to time throughout the years the parties were divorced. In 1978, the father was permitted to have the child for visitation during the summer months with the agreement that he would return the child to the mother prior to the starting of the school term in Houston, Texas.

The father refused to return the child and, instead, filed a petition in the District Court of Carter County, praying for modification of the New Mexico decree of divorce. Over the objections of counsel, the district court found it had jurisdiction of the cause, and heard testimony on September 6, 1978, on the motion to modify. The hearing was recessed until September 7, 1978, at 9:00 a.m. The mother requested permission of the court to visit with her child, and her request was granted for that evening. On September 7, 1978, counsel for the mother appeared in court and announced that he had received a telephone call from the mother stating that she was in Houston, Texas, with the child. The court heard the sworn testimony of the father, continued with further proceedings, and modified the decree by designating custodial visitation by the father with particularity instead of the general reasonable visitation granted by the New Mexico court.

I

It is asserted by the mother that the District Court of Carter County did not have jurisdiction to hear the matter because the minor child of the parties was not a resident of Carter County, or the State of Oklahoma, at the time the motion to modify was filed; rather, the child was a resident of Harris County, Texas. It is argued that under the case law of the State of Oklahoma, the only jurisdiction for a child custody case in a matter such as this is either in the court of original jurisdiction, or in the place of residence of the minor child. In Grubbs v. Hunter, 573 P.2d 699, 702 (Okl.1978), this Court reiterated the Oklahoma position as follows:

“We have long subscribed to the rule that even where our courts may have jurisdiction, if child custody is the subject matter in controversy, the doctrine of comity will be recognized in this State and the question of custody not relitigat-ed unless the welfare of the child is in jeopardy or some other unusual, circumstance exists. Clampitt v. Johnson, [359 P.2d 588 (Okl.1961)], supra; Hollick v. McDaniel, 401 P.2d 466 (Okl.1965). There is no indication from the order entered by [the] respondent Judge nor was any fact indicated to this Court on oral presentation, that the welfare of the children, or either of them, would be in jeopardy with their mother. Neither, is there any indi-cia of unusual circumstance requiring the district court [to] intervene and modify the custodial order entered by the Florida Court. See Application of Price, 528 P.2d 1107 (Okl.1974), and cases cited therein.”

It was recognized in Cox v. Paulson, 534 P.2d 14, 15 (Okl.App.1975) that, in Oklahoma as well as in other jurisdictions, the domicile or residence of the minor child whose parents have been divorced is the domicile of the parent to whom custody has been legally given. It is unquestioned that the child was in Oklahoma only on a temporary basis. The facts in this case are very similar to Grubbs v. Hunter, supra, and to Hedrick v. Hedrick, 571 P.2d 1217 (Okl.1977). The Hedrick case is particularly in point. In it, the Court determined that the general rule appears to be that, if the court of a sister state enters a valid and binding order concerning the custody of a minor child, the order should be recognized by the courts of this state as a matter of comity, and that the courts of this state will not assume or exercise jurisdiction to relitigate the question of custody unless the child is lawfully and legally in this state. In this case, as in the Hedrick case, there is no question that the child entered the state lawfully because of the mother’s consent to the child’s visitation.

It was recognized by the court, however, that an exception to the general rule should be permitted where the welfare of the child is in jeopardy, or some other unusual circumstance exists. Although the petition to modify the decree of divorce states that the best interest of the child would be served by modification, the judgment of the trial court modifying custody did not make a finding what the welfare of the child was in jeopardy, or that there existed some other unusual circumstance which required modification of custody. Therefore, the judgment is void on its face.

This Court will assume original jurisdiction and grant prohibition to prohibit the relitigation of the issue of child custody where there is a custodial decree from a sister state, unless there is an affirmative showing that the welfare of the child is in jeopardy, or there exists some other unusual circumstance.¹ If this were not the rule, there could be no orderly administration of the law, judgments of courts would be accorded no validity, and any disappointed litigant, in order to procure another hearing, would need only to forcibly take the child into another state.² We find that, absent unusual circumstances, where a parent brings a child into this state for temporary visitation under an order of a court of another state, which has continuing jurisdiction to change or modify its decree, then, in the interest of comity, the Oklahoma court should grant extraterritorial effect to the decree from a sister state and decline to hear an application to change custody on its merits made in this state. To hold otherwise would create chaos in child custody proceedings, discourage the granting of visitation privileges to non-residents, aggravate relationships between separated spouses, and, most importantly, would adversely affect the child involved.³

APPLICATION TO ASSUME ORIGINAL JURISDICTION AND WRIT OF PROHIBITION GRANTED.

WILLIAMS, BARNES, SIMMS and DOOLIN, JJ., concur. LAVENDER, C. J., IRWIN, V. C. J., and HARGRAVE and OPALA, jj., dissent.

1 . Duncan v. Seay, 553 P.2d 492 (Okl.1976).

2 . Hedrick v. Hedrick, 571 P.2d 1217 (Okl.1977).

3 . Jolly v. Avery, 220 Kan. 694, 556 P.2d 449 (1976).