Opinion
Argued June 19, 1931
Appeal dismissed July 28, 1931
Appeal from Circuit Court, Multnomah County.
GEORGE TAZWELL, Judge.
Divorce suit by Emma Friendly against Julius C. Friendly. Decree of divorce, and, from an order modifying decree in respect to custody of child, plaintiff appeals.
APPEAL DISMISSED.
R.C. Bradshaw, of Portland (Joseph, Haney Veatch, of Portland, on the brief), for appellant.
Lawrence T. Harris, of Eugene, and Albert B. Ridgway, of Portland (Ridgway, Johnson Kendall, of Portland, on the brief), for respondent.
On the 15th day of July, 1927, a decree of divorce was granted herein to plaintiff, which decree, among other things, awarded the care and custody of Melvyn Charles Friendly, a minor son of the parties, to the plaintiff. The decree further provided:
"That after the completion of the grammar school course in the public schools, for which approximately two years will be required, the said son of the parties hereto shall be enrolled and thereafter for a four-year period kept and maintained in some reputable boys preparatory or military school of recognized merit, situated and maintained within the mainland of the United States of America, with equal rights of the parents during said preparatory school period to visit and have the company of said child to such an extent as may not interfere with his school work, with vacation periods of said child divided equally between the parties hereto.
"It is further decreed that the grammar school education of said son shall be completed in the public schools of the state of California, and that neither of the parties hereto shall during any school term remove, take or permit to be taken the said child from the mainland of the United States of America, nor detain nor permit the detention of said child outside the said area during any regular period of school terms, and that delivery of the custody of the person of said minor from one party to the other during vacation period shall be made in the city of San Francisco, state of California, and that the rights of visiting herein given to the defendant may also be exercised by any paternal aunt or uncle of said child."
On June 30, 1930, defendant filed a petition asking for an order permitting and requiring the matriculation of said Melvyn Charles Friendly as a student in the Hill Military Academy at Portland. On July 11, 1930, defendant filed a motion to modify the above quoted portion of the decree of July 15, 1927. The record discloses that when said last mentioned motion was filed plaintiff and said child were in Multnomah county, Oregon. On July 22, 1930, the court made, and on July 24, 1930, there was entered, an order modifying the said order of July 15, 1927, which modification substantially conforms to the prayer of defendant's petition. This modified order contains a further provision as follows:
"It is further ordered that the plaintiff be and she is hereby permitted to remove said minor son, Melvyn Charles Friendly, to the state of California on the express assurance this day given by said plaintiff in open court that said minor son will be returned to the city of Portland, Multnomah county, Oregon, on the first day of September, 1930, and delivered to the defendant, Julius C. Friendly, at the office of Ridgway, Johnson Kendall, attorneys for defendant."
Defendant's motion to dismiss plaintiff's appeal herein, which is an appeal from the last mentioned order, is based upon the fact that plaintiff has failed to return said child to Portland, Oregon, as provided for in said order, but has kept him in San Francisco, California.
"A decree of a court of one state ordering the custody of a child is not binding upon the courts of another state under the full faith and credit clause of the Federal Constitution after the child has become domiciled in the latter state. Such a decree as to a child has no extraterritorial effect beyond the borders of the state of its rendition." Griffin v. Griffin, 95 Or. 78, 84 ( 187 P. 598).
Plaintiff's course in keeping her son in California, and in applying to a court of that state for the appointment of a guardian for him, clearly indicates that she has determined to set at naught the due process and orders of the courts of Oregon, and that she does not intend to obey their mandate respecting the custody of the minor child. We quote from an affidavit filed by plaintiff:
"That said minor is now and for more than three (3) years last past has been a resident of the state of California; that he absolutely refused, and still refuses, to leave his home in said state; that he insisted on attending Galileo high school, in the city and county of San Francisco, state aforesaid, and is now in attendance at said school; that he absolutely refused, and still refuses to go to any private school; that when said proceedings were had in Portland, Oregon, resulting in said decree of July 22, 1930, said minor was merely a sojourner in said state of Oregon, on his way to Alaska with his father on a trip; that said minor was not a party to said proceedings; never given notice thereof, nor was he represented therein; that affiant has been advised by her counsel and verily believes that under the laws of the state of California, the right of said minor to attend its schools is a vested property right, and that he may not be deprived thereof without due process of law; that said minor will attain the fourteenth year of his age on the 26th day of October, 1930; that in said guardianship proceedings said minor has appeared by his guardian ad litem, Edmond E. Herrscher, duly appointed to appear as such for said minor in said proceedings, and has filed an answer therein, pursuant to a citation issued to said minor in said proceedings, requiring said minor to appear and show cause, if any he had, why his said mother should not be appointed guardian of his person; that in the said answer said minor elects his said mother as the guardian of his person and joins with her in her said petition that she be appointed such guardian and that he be permitted to continue his studies in said Galileo high school."
Under such circumstances plaintiff is not entitled to press her appeal in this court: Knoob v. Knoob, 192 Cal. 95 ( 218 P. 568); McEntire v. McEntire, 213 Ala. 328 ( 104 So. 804); Burns v. Shapley, 16 Ala. App. 297 ( 77 So. 447); Landsown v. Landsown, 12 Ky. L.R. 509.
Ward v. Ward, 70 Vt. 430 ( 41 A. 435), cited by plaintiff, is a case wherein the wife was petitioner under a statute of the state of Vermont for the custody of children. The husband was the petitionee. The husband left the state immediately after the petition and summons were served upon him, taking the children with him. That case is distinguishable from the case at bar. The parties were not divorced. The court had exercised no authority over the children. The husband was not before the court asking its favor. Moreover, we note the following language in that decision:
"If the petitionee had, by his counsel been before the court asking its favor, or if the question of whether the petitionee should be heard had been discretionary with the court, it could have denied a hearing until the petitionee purged himself of the contempt by coming before the court and having the children within its jurisdiction."
Among the other cases cited by plaintiff, there is none wherein a party to a divorce suit had removed children from the territorial jurisdiction of the court, and, while thus depriving the court of the authority to make an enforceable decree, had attempted to prosecute an appeal from an order with respect to the custody of such children. For that reason these cases are not in point.
The dismissal of an appeal under the facts above outlined is in no sense imposing any punishment, nor is it denying any right, nor, for that matter, withholding any favor. It is simply a declaration by the court that it will not do a vain and useless thing, namely, make an unenforceable order at the instance of the party whose conduct renders such an order unenforceable.
For the reasons above stated, plaintiff's appeal is dismissed.
BEAN, C.J., RAND and ROSSMAN, JJ., concur.