October 9, 1958 —
November 5, 1958.
APPEAL from two orders of the circuit court for Milwaukee county: ROBERT C. CANNON, Circuit Judge. One order affirmed; one reversed.
For the appellant there was a brief and oral argument by Charles H. Galin of Milwaukee.
For the respondent there was a brief by Hersh Magidson of Milwaukee, and oral argument by Arthur B. Magidson.
Plaintiff and defendant were formerly married to each other and resided in Wisconsin. They had three children: Frances, born in 1940; Wendy, born in 1946; and Norris, born in 1948. Norris is mentally defective. On July 23, 1956, judgment was entered in the circuit court for Milwaukee county granting an absolute divorce. The judgment awarded custody of the children to the mother; provided, "That Mrs. Brazy may remove the children from the jurisdiction of this court to the state of California;" provided that Wendy and Frances be permitted to visit defendant during the summer of each year; provided that Norris, who was then at a school in Pennsylvania, be examined by representatives of the Devereaux school and that if it was ascertained that there was a possibility that the Devereaux school may help Norris in his physical and mental defects, Norris might be transferred to the Devereaux school in California. In the event that it was disclosed that the child could not be helped in any way, then the child, through the application of defendant, might be placed at Union Grove, Wisconsin, except that the mother, if she wished, would have the opportunity to have him placed in an institution in California rather than at Union Grove. The judgment provided: "If the child, Norris John, be removed from the state of Wisconsin, the defendant will pay the sum of $40 per month, and any additional expenses for the maintenance and care of the child will be paid by the plaintiff out of her separate estate." The judgment gave the defendant the right to have the daughters sent to Wisconsin or Florida during holidays at the expense of defendant. There was a property settlement and in addition defendant was ordered to pay $175 per month for the support of the daughters and $250 per month for alimony. The judgment provided that some $900, then on deposit, be set up in trust for the comfort of Norris and that certain other money be placed in trust for the education of the daughters and provided, "All trusts shall be subject to the orders of this court."
On September 18, 1957, counsel for defendant presented to the circuit court a proposed trust agreement to carry out the provisions of the judgment with respect to the trusts. The court issued an order requiring plaintiff to show cause on October 4, 1957, why the proposed agreement should not be approved and executed. Plaintiff's counsel served a notice of appearance on her behalf October 4th, and filed an affidavit in which she asserted that she had become a resident of California; that Norris was at the Houghton school in California and that certain changes in the proposed trust agreement should be made for the best interests of the children. The record does not disclose that the circuit court entered any order upon this matter.
On October 3, 1957, defendant remarried and traveled to California with his wife. He attempted to visit his daughters at Santa Barbara. Upon arrival he was served with a complaint, order to show cause, temporary restraining order, and affidavit in support thereof, in an action commenced in the superior court for the county of Santa Barbara, state of California, hereinafter referred to as the "California court." Mrs. Brazy was plaintiff and Mr. Brazy defendant in the California action. In the complaint plaintiff sought judgment ordering defendant to pay $400 per month for the care and training of Norris and sought that the custody of all the children be awarded to plaintiff.
Defendant retained counsel in Santa Barbara for the purpose, as stated in defendant's affidavit dated November 5, 1957, "to represent him and defend him in said action."
On November 5th defendant presented an affidavit to the circuit court for Milwaukee county, hereinafter sometimes referred to as the "Wisconsin court," setting forth the facts as to the commencement of the action before the California court; setting forth the defendant's opinion that the improvement in Norris' mental and physical condition does not warrant the expenditure of $400 per month; and setting forth certain other facts on the basis of which defendant asked the Wisconsin court to modify its previous judgment of divorce by awarding custody of all children to the defendant and reducing the alimony. Upon the defendant's affidavit the Wisconsin court issued an order to show cause why the judgment should not be modified as requested and why the plaintiff should not be enjoined from prosecuting any action in the California court. This order was dated November 5, 1957, set a hearing for November 22, 1957, restrained plaintiff until the hearing from any proceedings in the California court, and ordered service of the affidavit and order to show cause upon plaintiff's Wisconsin counsel and upon plaintiff in California. Such service was made and a true and correct copy personally delivered to plaintiff in California on November 9th.
On November 22, 1957, plaintiff's Wisconsin counsel filed a notice of special appearance in the Wisconsin court asserting that the Wisconsin court did not have jurisdiction to hear the matter and that personal jurisdiction over the plaintiff had not been acquired. In support of the plaintiff's special appearance, it was asserted that on October 17th defendant had appeared in the action in the California court by a stipulation duly signed by his attorney and that the stipulation provided for trial upon the merits in the California court on November 22, 1957. On November 14th the California court issued an order restraining defendant from proceeding with his application for modification of the judgment in the Wisconsin court and a copy of that order was delivered to the defendant on November 18th. On December 12th the California court declined to yield jurisdiction to the Wisconsin court. Defendant's counsel withdrew from the action before the California court. The California court, after hearing, required defendant to pay $300 per month as support money for Norris, and modified the defendant's visitation rights by denying him the right to have the daughters visit him during vacation.
On December 23d the Wisconsin court overruled the plaintiff's special appearance and adjourned the hearing to December 24th upon defendant's motion to hold the plaintiff in contempt for violation of the restraining order entered November 5th. Plaintiff has appealed from the order dated December 23d.
On December 24th plaintiff filed a document entitled "Answer and Plea," alleging her residence in California and the various proceedings in the California court. At the close of the document she stated that she "files herewith exemplified copies of the proceedings" in the California court. There was filed on the same date a series of exemplified copies of papers in the action in the California court in a jacket and with a face sheet bearing the caption of this action with the note thereon, "See attached California records. Exemplified." The copy of the California judgment discloses that the defendant is required to pay plaintiff alimony and support money for the daughters as previously; that defendant is required to pay $300 per month for the maintenance and care of Norris; sole and exclusive custody of all the children is awarded plaintiff; defendant's rights of visitation are restricted by prohibiting him from removing the daughters from the home of plaintiff and the son from the Houghton school without permission of the court. The judgment also requires defendant to pay certain attorneys' fees and costs.
The Wisconsin court on January 29, 1958, made findings of fact and an order thereon and plaintiff has also appealed from this order. The Wisconsin court found that by its judgment, it had retained continuing jurisdiction with reference to custody, visitation, alimony, and support money; that at the time of the entry of the judgment, the court considered evidence of the mental condition of Norris and concluded that Norris was permanently and incurably mentally defective and that an expenditure of a large amount of money would be unreasonable; that defendant had retained counsel in California solely for the purpose of delaying the proceeding in that court until he could invoke the jurisdiction of the Wisconsin court and that any stipulation or other action by defendant's counsel in California in excess of that purpose was beyond the scope of counsel's authority; that at the time of the commencement of the action in California the matter of the approval of the trust agreement was pending in the Wisconsin court; that the California court did not give full faith and credit to the acts and proceedings of the Wisconsin court; that plaintiff wilfully failed to permit one of the daughters to come to Milwaukee for a visit in December and violated the restraining order of the Wisconsin court, wilfully and contumaciously. Upon the findings the Wisconsin court ordered that the California court did not have jurisdiction of defendant's person or of the subject matter; that under the rules of comity, it should have declined to exercise jurisdiction, if it had it; that the Wisconsin court is not bound by the judgment of the California court; that plaintiff's answer and plea are overruled; and that pending compliance of plaintiff with the judgment of the Wisconsin court, the defendant shall continue to pay alimony and support money to the clerk of the Wisconsin court, but the clerk is directed to forward only the support money and to withhold the alimony.
Defendant has moved that the exemplified copies of the proceedings in the California court be stricken from the record on appeal on the ground that these papers were a part of the evidence and were not incorporated in a bill of exceptions.
The action in the California court involved both the element of custody (defendant's right to have the daughters visit him) and of support (defendant's payments for support of the son). We are of the opinion that the California court had jurisdiction of the subject matter in both respects and it had personal jurisdiction over defendant by reason of personal service upon him in California.
No argument has been made to us that there was any infirmity in the personal service upon the defendant at Santa Barbara. It is, thus, unnecessary to consider whether the actions of his California counsel would have conferred personal jurisdiction over the defendant in the absence of valid service or whether the California counsel exceeded his authority.
The plaintiff and the children were present, resident, and domiciled in California. They had gone there with the express permission of the Wisconsin court. Whether the test be domicile, as asserted in Restatement, Conflict of Laws, p. 211, sec. 146, or residence, or substantial interest in the welfare of the child, as suggested by Professor Stansbury in Custody and Maintenance Law Across State Lines, 10 Law and Contemporary Problems, 819, 831, the jurisdiction of the California court over the subject matter of custody is clear.
In State ex rel. Hannon v. Eisler (1955), 270 Wis. 469, 71 N.W.2d 376, we upheld a determination of custody by a Wisconsin court where the children had been residing in Wisconsin with their father, and there was personal jurisdiction over the mother, who was not a Wisconsin resident, but who had come into Wisconsin and seized custody of the children. The determination upheld in that case, changed the custody award in a prior Canadian judgment.
Jurisdiction of the California court over the matter of support is also clear. Perhaps no more is ever required than personal jurisdiction over the defending parent. Stansbury, op. cit. But here, in addition, the child being supported is present, resident, and domiciled in California, and that state has a substantial interest in his welfare. See Restatement, Conflict of Laws, p. 546, sec. 457.
In Setzer v. Setzer (1947), 251 Wis. 234, 29 N.W.2d 62, a Wisconsin court altered the amount of support money which a father was required to pay, the amount having been originally determined by the judgment of a Florida court. There all the parties were present and resident in Wisconsin.
In both the Hannon (custody) and Setzer (support) Cases, it was found that there had been a change of circumstances since the judgment previously entered by a different court. Whether courts have really decided custody cases upon the principle that the second court is bound by the judgment of the first in the absence of a change in circumstances has been questioned. Stansbury, op. cit., and Ehrenzweig, Interstate Recognition of Custody Decrees, 51 Michigan Law Review, 345. Whether a previous judgment on custody is made binding by the constitutional requirement that full faith and credit be given has been expressly left undecided by the United States supreme court. Halvey v. Halvey (1947), 330 U.S. 610, 67 Sup.Ct. 903, 91 L. Ed. 1133; Kovacs v. Brewer (1958), 356 U.S. 604, 78 Sup.Ct. 963, 2 L.Ed.2d 1008.
In any event the Wisconsin court cannot review the judgment of the California court. If defendant considers that the California court gave insufficient effect to the 1956 judgment of the Wisconsin court, his remedy was an appeal from the judgment of the California court.
Defendant argues that because the Wisconsin court had originally determined custody and support, had considered all the issues with all the parties before it, because it is in a better position to compel defendant to fulfil his obligations, and because the motion for approval of the trust agreement was already pending in the Wisconsin court, the California court should have deferred to the Wisconsin court. All these considerations could have been urged upon the California court, but it is not for us to say that it was wrong in rejecting them and declining to defer.
We are of the opinion that the Wisconsin court as well as the California court, had jurisdiction to decide questions of custody and support. The judgment which regulated these matters prior to the action in California was entered here. The defendant remains a resident of Wisconsin; several provisions of the divorce judgment quite clearly indicated that the parties might apply to the Wisconsin court if differences arose, including the matter of the trusts. Plaintiff had appeared before the Wisconsin court without objection on the matter of approval of the trust agreement. We do not subscribe to the proposition that the jurisdiction of the California court was exclusive. Criticism of the Restatement view on this subject has been voiced in the articles of Professors Stansbury and Ehrenzweig above cited. In Hatch v. Hatch (1937), 15 N.J. Mis. R. 461, 192 A. 241, while the New Jersey court declined jurisdiction of an application to modify a New Jersey award of support money because both parents and the child had moved out of the state, the court made it clear that it had jurisdiction, but declined to exercise it for reasons of policy.
We conclude, however, that the Wisconsin court erred in entertaining defendant's application for a change in the provisions for custody and support on November 5th. The action in the California court covering the same subject matter had been previously begun. The orderly administration of justice requires that there be some rule for avoiding the conflicting exercise of jurisdiction by two courts both of which are competent to decide the issues. Ordinarily, a court should not exercise jurisdiction over subject matter over which another court of competent jurisdiction has commenced to exercise it. See 14 Am. Jur., Courts, p. 435, sec. 243; 21 C. J. S., Courts, p. 745 sec. 492.
It was an abuse of discretion to issue a restraining order to prevent plaintiff from proceeding before the California court.
We are of the opinion that plaintiff's objection that the Wisconsin court could not act because of lack of personal jurisdiction over her was not well taken. She was plaintiff in the original action. The divorce judgment made it evident in a number of provisions that the rights of the parties would be subject to possible further orders of the court. Sec. 247.25, Stats., provided for subsequent alterations of the judgment concerning care, custody, maintenance, and education of the children. Notice to her of the application for modification need not be delivered to her within Wisconsin. Restatement, Conflict of Laws, p. 114, sec. 76, and comment in 1948 Supplement, p. 96; Cohn v. Cohn (1942), 151 Fla. 547, 10 So.2d 77, 143 A.L.R. 428.
The earlier order appealed from was dated December 23, 1957. It both overruled plaintiff's special appearance and ordered a hearing upon defendant's motion to hold plaintiff in contempt. We shall affirm that part of the order which overrules her special appearance, striking out the remainder.
The order dated January 29, 1958, states several conclusions of law which we deem erroneous. The only provision of the order which directly affects the rights of the parties is the direction to the defendant to continue to pay support money in the same amount as provided by the original judgment and the direction to the clerk to withhold payment to the plaintiff of alimony until further order of the court. These provisions fail to give full faith and credit to the judgment of the California court. Therefore we conclude that this order should be reversed, and the motion for change of custody and support provisions should be dismissed.
Defendant has moved to strike from the record on appeal the exemplified copies of papers in the action in the California court. In the statement of facts we have quoted the reference made to these exemplified copies in the plaintiff's answer and plea. The answer and plea and the copies were filed in the office of the clerk on the same date.
Sec. 269.42, Stats., requires that "all affidavits and papers used on any motion" be filed. Supreme Court Rule 1 (6), sec. 251.251(6), Stats., provides that there shall be included in the record on appeal "orders material to the appeal, and papers upon which they are based." We think it sufficiently appears that the answer and plea and the exemplified copies were among the papers used on the motion and upon which the order was based. Therefore they need not be stricken.
By the Court. — Order dated December 23, 1957, modified by striking out provisions for hearing upon matters of alleged contempt and, as modified, affirmed. Order dated January 29, 1958, reversed, and cause remanded with directions to dismiss the order to show cause dated November 5, 1957; respondent's motion to strike papers from the record on appeal denied.
MARTIN, C.J., and BROWN, J., took no part.
The following memorandum was filed January 6, 1959:
The respondent husband has raised a number of questions as to the effect of our decision, but these questions go beyond the issues properly before us on the appeal. Our decision did not impair the jurisdiction of the Wisconsin court to hear a motion to modify the rights and obligations of these parties with respect to custody, alimony, or support money. We decided that it was error for the Wisconsin court to entertain the motion of appellant husband brought November 5, 1957 while the action in the California court was pending, but did not decide that the Wisconsin court lacked jurisdiction of the subject matter.
By the Court. — Motion for rehearing denied, with $25 costs.