Fenner v. Bassett , 412 P.2d 318 ( 1966 )

NESBETT, Chief Justice.

A California divorce decree awarded custody of the children of the parties herein to appellee with the reasonable right of visitation in appellant. Without the permission of the California court or of the appellee, appellant removed the children from California to Alaska and immediately filed suit in Alaska to obtain custody. The principal question raised on appeal is whether the trial court erred in refusing to assume jurisdiction of the custody suit.

The pertinent facts are that appellee, as plaintiff in a divorce action commenced in California, obtained an interlocutory decree by default on July 9, 1963. The decree approved a property settlement agreement between the parties dated May 31, 1963 which provided that appellee should have legal custody of the two adopted minor children, but giving appellant “ * * the right of reasonable visitation of the children at all times and places.”

Upon the motion of appellant, a final judgment of divorce was granted by the Superior Court for Los Angeles County on July 13, 1964. On December 30, 1964 appellant removed the children from California to Delta Junction, Alaska, without the knowledge or permission of the California court or of appellee. On December 31, 1964 appellant notified appellee by telegram that she had the children in Alaska and intended to file suit for custody.

On January 5, 1965 appellant’s complaint for custody was filed in the superior court at Fairbanks and insofar as is pertinent alleged:

The appellant was'the proper person to have the care, custody and control of the children and that appellee was not the proper person to have the care, custody and control of the children.

Concurrently with the filing of the complaint, appellant filed an affidavit with the court which, insofar as is pertinent, stated:

The facts of her marriage to and divorce from appellee;

That appellant’s understanding of the visitation provision of the decree was that it permitted her to visit the children at her place of residence wherever that place of residence might be and permitted her to institute legal proceedings to determine future custody of the children at her place of residence;

That appellant was happily married to a licensed physician, practicing at Delta Junction;

That appellant desired custody of the children and had prepared a satisfactory home for them;

That because of the age of the children “ * * * she is now the fit and proper person to have the care, custody and control of the said children * * * ”

and further; that because of the age of the children and for other reasons appellee was no longer the proper person to have the care, custody and control of the children.

A hearing was had on appellee’s motion to dismiss on January 20, 1965. In a memorandum decision dated February 25, 1965 the trial judge found that the children had been brought to Alaska in contravention of the custody decree of the California court; that the Alaska court had jurisdiction of the subject matter of the dispute but that it refused to exercise its jurisdiction. The motion to dismiss was granted.

Relying on the authority of Clegg v. Abood¹ appellant argues that the superior court in Fairbanks had jurisdiction of the parties and the children and could not decline to exercise its jurisdiction to modify the California custody provision upon a showing of changed circumstances.

To support the trial court’s refusal to exercise jurisdiction appellee relies upon the doctrine of State ex rel. Marthens v. Superior Court² and the fact that no change of circumstances was alleged or shown.

The facts before us are very similar to those in Marthens. Since we believe that the public policy aspect of the doctrine of that case is sound and applicable, we accordingly conclude that the trial court was correct in holding that it had jurisdiction and correct in refusing to exercise its jurisdiction.

In Marthens the children were removed from California to Washington contrary to a California custody decree. An action was filed in Washington to modify the California decree. The Supreme Court of Washington prohibited the Superior Court of that state from assuming jurisdiction on the following grounds:

(1) That Article 4, Sec. 1 of the Constitution of the United States, which states in part:

Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State

required that the custody provisions of a divorce decree of a sister state be given full effect in other states;

(2) That the minor children did not have a domicile in Washington, and

(3) That the complaint failed to allege any facts constituting a change of conditions since the entry of the decree in California which would warrant a Washington court to interfere with the California decree.

The public policy against assuming jurisdiction in this type case was expressed as follows:

As a practical matter, it would make the state of Washington and its courts a haven of refuge for residents of all other states of the Union who might receive an unfavorable decision in a divorce action depriving them of custody of their children. To so hold would place a premium upon the surreptitious and constant removal of children from their domiciles in neighboring states and would result in endless litigation in this state over the custody of minor children, when such custody had already been determined by the courts of the sister states.

Marthens recognized the well established rule that courts of the asylum state where the children are resident, may assume jurisdiction where there is a showing of change of conditions and circumstances arising since entry of a decree in a sister state determining custody. The court observed, however, that the only allegation in the pleading before it which was at all relevant to show a change of circumstances was the bare conclusion that the welfare of the children required the court to assume jurisdiction. The court pointed out that allegations of fact in a pleading concerning change affecting the health, schooling, social influence, housing, comfort, well being, general welfare or imminent danger to the children were typical of the type change in circumstances which might persuade a court to assume jurisdiction.³

As in Marthens, appellant has not alleged a change in circumstances in her complaint or affidavit sufficient to warrant an Alaska court to assume jurisdiction under the circumstances. The only-relevant allegation contained in the complaint was the statement that appellant was the proper person to have custody of the children and that appellee was not. This was only a conclusion. The only allegations of fact contained in her affidavit were that she was happily married to a physician, could provide an adequate home in Delta Junction; that because of the age of the children she was the fit and proper person to have custody and that appellee was not. Nothing in the foregoing allegations indicated that the circumstances of the children with appellee had deteriorated in the five months since the California decree was made final or that their' circumstances would be improved if custody were changed to appellant. In short, there was no showing that the circumstances of the children required that an Alaska court assume jurisdiction to act for their protection or welfare.

We consider it significant that appellant voluntarily entered into the property settlement agreement in California which gave custody of the children to appellee, consented to a default entry of divorce placing the custody provisions into interlocutory effect, then a year later, on her own motion, caused the California court to enter a final judgment of divorce which had the effect of making final her consent to ap-pellee’s custody of the children. Instead of petitioning the Californiá court - for a change in custody while present-in California, appellant removed the children from the jurisdiction of that court and from appellee’s legal custody without notice or permission. - Only five months had elapsed since appellant herself had caused the California court to enter its final decree awarding custody to appellee.

We do not consider the holding in Clegg v. Abood⁴ as applicable to the facts of this case since the court specifically found in Clegg that the pleadings sufficiently alleged a change in circumstances. In fact, the court distinguished its facts from those in Marthens on that basis.

Appellant contends that it was error for the court to have dismissed the complaint without a hearing to determine whether or not circumstances had changed since entry of the California decree.

Civil Rule 12(d) is directly applicable to appellant’s argument. This section provides that the defense of lack of jurisdiction, whether made in a pleading or by motion, shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination be deferred until trial.⁵ Since this rule is similar to Fed.R. Civ.P. 12, federal authorities have been considered in its interpretation and have been found to be persuasive.

There appears to be little question but that the general rule in the federal courts is that determination of the question of jurisdiction on the .pleadings, affidavit, counter-affidavits and other documentary evidence is the accepted practice.

In Smith, v. Sperling⁶ the trial court spent IS days in hearings to determine facts upon which to decide the question of jurisdiction. The United States Supreme Court in a S to 4 decision reversed the judgment based upon the fully developed facts and ruled that the facts could and should have been determined from the allegations contained in the pleadings and the nature of the controversy.⁷

The motion to dismiss for lack of jurisdiction herein was filed January 13, 1965 along with a supporting four page memorandum. Appellant filed a four page memorandum opposing the motion to dismiss. No request was made to introduce oral testimony although appellant and the children were in the area of Fairbanks or Delta Junction at the time. In her memorandum appellant admits that no allegations of changed circumstances were made in her complaint. She argued that such allegations were not necessary, but that if they were necessary, leave to amend the complaint would be requested. No request to amend was ever made.

The fact is that contrary to the inference contained in appellant’s argument, a hearing was held. The court had before it appellant’s complaint and affidavit, ap-pellee’s lengthy petition for a writ of habeas corpus, copies of the interlocutory and final decree issued by the California court, a copy of the telegram from appellant to appellee advising that she had removed the children to Alaska and the briefs of counsel pro and con on the merits of the motion to dismiss. The transcript of the hearing on the motion at which both counsel argued and discussed the case with the judge consists of 33 pages. Neither side objected to the hearing and determination of the motion on argument based upon the above record. Neither side requested a continuance or permission to call witnesses. At the conclusion of the hearing the court advised that the matter would be taken under advisement, whereupon counsel for appellant remarked, “Thank you, Your Honor, for being so patient.”

It is true that on three occasions during the hearing on the motion, counsel for appellant referred to the necessity of a hearing to determine facts. These were:

(1) a reference to the facts which would have to be found in order to determine whether or not there actually had been a change in circumstances;

(2) a reference to the facts which would have to be found before it could be determined whether appellant had violated the California custody decree by her removal of the children to Alaska and

(3) a statement by counsel that he did not think that the court could grant the motion to dismiss without a hearing, because all parties were before the court and there were “some changed circumstances to be shown to the court”, and that he didn’t think that without a hearing the court could grant the motion to dismiss.

None of the statements could be interpreted as being an objection to the hearing on jurisdiction then being held. The latter statement simply emphasizes counsel’s unfamiliarity with the implications of the type of hearing then in progress. When all of the above statements are read in the context of appellant’s counsel’s entire argument it seems *likely that what counsel desired was for the court to rule that it had jurisdiction and then order a full trial on the merits.

Appellant argues that she was denied due process of law by the court in granting the motion to dismiss without a hearing. She relies upon Article 1, Section 7 of the Alaska Constitution,⁸ and the Fourteenth Amendment of the United States Constitution.⁹

Appellant points out that for a hearing to meet the standard for due process it must have been fair, appropriate and adequate and the participants must have had an opportunity to protect their rights and make a showing by evidence.

As has been mentioned, appellant received ample notice, and was accorded a full hearing of the type generally employed for the purpose of determining the question of jurisdiction; she was not restricted in the presentation of evidence; her brief in opposition to the motion was timely filed and exhaustively argued at the hearing. At the conclusion of the hearing, the matter was taken under advisement. A written decision was not published until over a month later. No procedural constitutional right of due process was violated.¹⁰

In view of the foregoing we hold that no error was committed with respect to the type hearing held to determine the jurisdiction question.¹¹

Appellant also claims that error was committed by the trial court in refusing to exercise jurisdiction on the ground that' appellant lacked clean hands and in entering a finding that appellant lacked clean hands without first holding a hearing.

We have studied the trial court’s memorandum opinion. While it does mention the equitable maxim of clean hands and refers to the case of Leathers v. Leathers,¹² it does not specifically find that appellant lacked clean hands, nor does it specifically base its holding on that maxim. Neither is it specific on the question of whether changed circumstances were sufficiently alleged, for that matter.

Although the memorandum opinion is equivocal in many respects, its conclusions are correct for the reasons we have stated. Since it is not necessary that we consider the question of clean hands in making a proper disposition of the case, we shall not do so.

The order of the trial court refusing to exercise jurisdiction and dismissing the complaint for custody is affirmed.

1 . 13 Alaska 187, 191 (D.Alaska 1951).

2 . 25 Wash.2d 125, 169 P.2d 626 (1946).

3 .Holdings similar to that in Marthens based on similar facts have been reached in other jurisdictions. See: Crocker v. Crocker, 122 Colo. 49, 219 P.2d 311 (1950); State v. Black, 239 Ala. 644, 196 So. 713 (1940); Application of Lorenz, 194 Or. 355, 241 P.2d 142, rehearing denied, 194 Or. 355, 242 P.2d 200 (1952).

4 . 13 Alaska 187, 191 (D.Alaska 1951).

5 . Civ.it. 12(d) states:

(d) Preliminary Searings. The defenses specifically enumerated (l)-(7) in subdivision (b) of this rule, whether made in a pleading or by motion, and the motion for judgment, mentioned in subdivision (c) of this rule shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination thereof be deferred until the trial.

Subsections 1 and 2 apply to:

12(b) (1) lack of jurisdiction over'the subject matter, 12(b) (2) lack of jurisdiction over the person.

6 . 354 U.S. 91, 77 S.Ct 1112, 1 L.Ed.2d 1205 (1957).

7 . See: Central Mexico Light & Power Co. v. Munch, 116 F.2d 85, 87 (2d Cir. 1940); Ramirez & Feraud Chili Co. v. Las Palmas Food Co., 146 F.Supp. 594, 597-598 (S.D.Col.1956) aff’d, 245 F.2d 874, 875 (9th Cir. 1957) cert. denied, 355 U.S. 927, 78 S.Ct. 384, 2 L.Ed.2d 357 (1958). See also, Carr v. Beverly Hills Corp., 237 F.2d 323, 325 (9th Cir. 1956) .cited by appellant, where the issue of jurisdiction was tried on affidavits and counter-affidavits. On appeal the court remarked that such a practice was contrary to the universal practice in federal courts, without citation of authority, but went on to hold that the parties acquiesced, without objection, and were bound by the trial court’s finding on jurisdiction. This case was reversed pursuant to Smith v. Sperling in 354 U.S. 917, 77 S.Ct. 1375, 1 L.Ed.2d 1433 (1957).

8 . The pertinent portion of Alaska Constitution, Art. 1, § 7 states:

No person shall be deprived of life, liberty, or property, without due process of law.

9 . The pertinent portion thereof states:

* * ⅜ nor shall any State deprive any person of life, liberty, or property, without due process of law * * *

10 . Dohany v. Rogers, 281 U.S. 362, 369, 50 S.Ct. 299, 74 L.Ed. 904, 912 (1930).

11 . It should be noted that in Marthens, all of the facts upon which the issue of jurisdiction was decided were contained in the complaint, supplemented by affidavits pro and con; in Leathers v. Leathers, 162 Cal.App.2d 768, 328 P.2d 853, 855 (Dist.Ct.App.1958), in a petition for a writ of habeas corpus, an order to show cause and the testimony of one witness; in Clegg v. Abood in the complaint alone.

12 . Supra note 1L