*1 principle court carried too far of con-
struing against party an instrument up. who drew it judgment reversed. All concur. BATCHELOR, Appellant,
Mary Frances FULCHER, Appellee. E. Donald Kentucky. Appeals Court of June 1967. Dissenting Opinion June 13, 1967.
As Modified June Nichols, Nichols, &
Earle M. Nichols Madisonville, appellant. for Franklin, Gordon, Franklin & Carroll S. Madisonville, appellee.
MONTGOMERY, Judge. Mary Frances contest between
This mother, and Donald E. Batchelor, father, Fulcher, the over Fulcher, children, born Wayne Donald their Ful- September 28, Gaile and Carla cher, The action born November on motion mother was dismissed father, challenging Court, ground Hopkins on the Circuit order he had obtained an grant- a divorce children’s ined Indiana. mother, appeal, contends on and that even was void
Indiana void, if enforced in it should not be *2 day custody appellee On the sued for case. The latter same 22, 1965, divorce, July appellant married decisive. husband, Raymond her Batchelor. parties November The were married on They County Hopkins have in since lived 7, Hopkins Coun- 1959. Both are natives of shortly marriage. after their ty. During part period their mar- Appellant and her husband testified that riage they they Kentucky. in Then lived July 1966, appellee appellant in called Evansville, Indiana, lived in about two Indiana, told Gary, get her to come years moving in before to California Jan- Appellant appellee said that children. uary February sepa- Appellant or assigned having as the reason that he was rated from her husband in California Ap- trouble bride with his weeks. three 1964, Florida, taking November and went to pellant they her husband said children with her. Gary m., stayed arrived about 8 a. Florida, stayed Fulcher her followed until p. ap- about 2 m. During this time days, few pellee obtained the without preparing his bride were consent, claims, her she and returned to children and their clothes return to Ken- Hopkins 1965, County. January In tucky Ful- appellant Ap- with and her husband. cher took pellee the children to California. He claims the children were taken February, Kentucky returned to and after from his knowledge home without or stay Indiana, Gary, a short he went to tak- consent. The children have remained with ing the children with appellant 3, him. Kentucky July since Appellant 7, 1966, July filed this action 1965, In parties Hop- March met in custody seeks she to have County. kins The son turned over to awarded to her. Personal had service was appellant. later She took him to Florida. appellee on he when returned to daughter The had been left in On Indiana. get the children. 2, 1965, July the father took the son from force, claims, the mother in Florida she questions Three are inherent in this and returned to Indiana. Hopkins case: Court Was Circuit give bound full credit faith and to the 8, February 1965, On the mother sued for custody Indiana order the absence County, divorce in April Lake On Florida. personal service on the mother? Did the 1965, the father filed an in that answer Hopkins Circuit Court have together with of notice waiver custody determine the of the children? a notary public. July sworn before On and, so, controlling If what is the factor 14, 1965, granted the mother was a divorce. in such determination ? question custody of the children was adjudicated not raised or in the Florida Anderson, 73 S. action. Ct. 97 L.Ed. obtain- husband custody ed a divorce and order for the July 22, On the father for di- sued of the children in Wisconsin obtain- without vorce and of the two children ing personal service on the who was mother County, Lake Indiana. mother was Afterward, then in husband Ohio. proceeded by publication against as a non- sought to obtain the of the chil- resident. She disclaims notice knowl- proceeding dren mother in from the edge of proceeding. Shortly Sep- after Ohio. He on relied the Wisconsin 21, 1965, day tember the return for the order. process, grant- nonresident the husband was order, ed a rejecting divorce and the of the two the Wisconsin children, Supreme Court, speak- who him. United States
ing Burton, through against Ohio, personal Mr. stated and Justice question deprive answered the thus: that it their must have order to personal right mother of her to their “ * ** before us elemental possession.” immediate state, whether court of a *3 domiciled, Ford, 187,
where a mother resi- is neither See also Ford 371 83 U.S. v. may 240; present, 273, nor cut People dent off her im- S.Ct. 9 L.Ed.2d of State care, custody, to right Halvey Halvey, mediate man- of New York ex rel. v. agement companionship 610, 903, and minor 330 91 L.Ed. of her 1133. U.S. 67 S.Ct. having jurisdiction children without over The decree of Indiana court personam. Rights pre- her in far more right validly deprive did not her of a to seek appellant property rights cious to Hopkins of her children in by will be cut off if to be she is bound Circuit Court. of custody. Wisconsin award jurisdiction Three concurrent bases of “ open too well ‘It now settled generally recognized in of been cases dispute further “full faith and They are: character. domicile Congress the act credit” clause and of state; presence of child in passed pursuant to it do not entitle state; personal jurisdiction and over personam judgment in to extraterritorial contending parties. See Restatement of appear if it effect it be made that was Law, Second, Laws, Pro- Conflict of jurisdiction rendered without over 1967, posed Draft, 2,May Official Section person sought to be bound.’ Baker v. 79, 294-300, Pages for a full discussion Baker, Co., 394, 401, & 242 Eccles U.S. and citation authorities. therein 403, 152, 155, 37 see 61 L.Ed. S.Ct. fact, observed that: “In each Whitman, Thompson
386 [391,
v.
392];
these
judicial jurisdiction provides
bases
457,
897;
(U.S.)
21
18 Wall.
L.Ed.
a reasonable and suitable basis
165,
D’Arcy Ketchum, (U.S.)
v.
11 How.
may proceed
proper
a court
in a
case.”
jurisdiction grant custody his children to of they might May wherever An- be. v. OSBORNE, JJ., HILL and dissent. derson, supra, jurisdiction upon is based present technical In the case domicile. OSBORNE, Judge (dissenting). upon is based actual domicile presence. and They distinguishable. majority opinion re- holds we are not concerning There are other v. factors quired give to full faith credit to a and properly Anderson which should be Indiana, decree entered in where the out. First and foremost is the fact that mother personally served, was not even purports opinion what ma- to be of the though the children and father all were jority by majority was not a concurred personally domiciled there and the children opinion the members. The was written present in Indiana when was the decree by by Burton and three concurred Justice entered. justices. Frankfurter wrote a Justice separate concurring opinion in which he attempt We justify by say- our action agree does not with the of majority basis ing since the mother pres- and children are opinion. Reed and Minton dissent- ently Justices before this court and the best interest ed and part Clark took no in the of the it, Justice seem to us to demand we However, majority places case. since our disregard the Indiana great case, such stress this one it will proceed decree and as if it were never enter- necessary length. to review it at some ed. I do not proper believe a this is and accurate statement of the generally law stated, As above the father was a resident of the law of this nothing more Wisconsin, the mother of Ohio. The adoption a formal of the rule of “seize parties were- married in Wisconsin and and run.” lived there until the onset of trouble. problem The central December of is whether the In- 1946the wife left the husband judgment diana Lisbon, took Ohio, should be faith the children accorded full by credit think in- over her future By courts of New course. Day, cident a problem solution Year’s of this she called is the her husband and jurisdiction. informed him that If Indiana had she had decided not to jurisdiction at the return to days time entered A its decree Wisconsin. few thereafter then Kentucky required 4, he filed suit in seeking under article Wisconsin an ab- section 1 solute the Constitution of divorce and United of the children. give States to full only faith and credit to process upon service of the wife Indiana majority opinion decree. The cites delivery copy her in Ohio authority as for its holding May Ander- the Wisconsin petition summons and son, 528, 345 73 S.Ct. L.Ed. 97 made no mention of the fact there was important 1221. The one single factor a proceeding for of the chil- ignored by opinion the majority is that dren. appearance She entered no and took part proceedings. Burton dren before the court when the order Justice writing for alarming himself and three other members was This entered. is an situation brings court held that the was not wife about could be a cata- what strophic
bound decree cites Wisconsin for it in effect that all result holds authority Redding, 200 Ind. Weber v. orders this other states Also, 448, 454-455, N.E. San- constructive service are entitled 837-838, Sanders, Mo.App, credit, ders though faith and even full Carter, 459-460; 14 S.W.2d Carter at time children were before 201 Ga. re- S.W.2d 532. Without the order was entered. detail,
viewing these authorities we be- May v. in his dissent in Justice Jackson lieve it that in none will suffice to out fol- problem Anderson summarizes of them were lows: entry judg- state at time of the Carter, example, ment. As Carter quite “I am aware that in recent times supra, points at time the court out that chipping away has been at the this Court was entered the South Car- concept connecting factor domicile granting olina court “the child was individual to de- between the state and the Georgia mother *5 are a rights obligations. termine We had two approximately where he been for move, people, historically mobile on the years exception the or three two concept of domicile perhaps rigid the days surrepti- during which father the had by derived common law from feudal at- tiously the taken the child state.” out rigid tachment is for a to the land too society But if fed- so ours. our restless as Sanders, supra, Sanders v. the separate legal system eral is to maintain points out: communities, as the Full Faith and Credit evidently contemplates, there must Missouri, Clause found case in “We have determining to some test for which intimates, however, holds, or even If, pur- person belongs. a for this these has that the circuit court pose, concept domi- is a better there one give the of minor children to cile, yet not hit Aban- we have it. other, spouse grant- the the time or at of this ancient doctrine would donment divorce, is ing service when decree of a many in partial vacuums leave branches suit on defendant such obtained the be abandoned law. seems to publication, and when here. at with defendant another state both petition and when the time was filed “The Court’s decision holds divorce decree entered.” was parent are a one which child primarily concern- domiciled and which is supra, the Indiana Redding, In Weber v. constitutional- ed about his welfare cannot itas invalid
court held
decree of Ohio
ly adjudicate
as to
controversies
“for
to the
related
is
power here
guardianship. The state’s
jurisdic-
not have
reason that
court did
par-
by the
of the
defeated
absence
appellant or the
child.”
of either
tion
period
The con-
a
of two months.
ent for
parent
foregoing
leave-taking
apparent
It is
from the
of a
is
venience
Anderson,
child,
placed
ruling
the court
v.
welfare
above
greatly
where
supra,
party
to a situation
but
aided
is limited
neither
jurisdiction of
obtaining
a decision. The
not
Wisconsin
child is
mother,
Not
is entered.
bind the
when the order
courts cannot
the court
bind the fa-
court ever
courts cannot
present case
Ohio
until the
a
the law such
full faith and credit
A state of
grant
ther.
refused to
this,
apparently is not
possession
chil-
awarding
where
when
merely
points
nine
of the law but all
“[wjhether
statement
the South Carolina
self-help
of them and
the ultimate author-
interpretation
court’s
of the Full Faith
ity, has little to
legal logic
commend it in
Credit Clause is a
correct one is
principle
as a
of order in a federal
previously
we have
reserved.” In the foot-
system.”
statement,
Halvey
note to this
the court cites
“
Halvey,
v.
91 L.Ed.
* * *
spite
of the fact that
S.Ct.
in which it
had held the courts
judges and
long
recog-
law writers
modify
New York
entered
could
decree
similarity
jurisdic-
nized the
between
open
Florida
for
because such decree was
requirements
tional
for
divorce and
modification in
case
Halvey
Florida.
appears
equate
this decision
significant
process
because
service of
jurisdictional requirements
a cus-
publication
had
and the
the husband
personam
tody
decree
those for an in
process
court did not rule such
was invalid.
money judgment.
opinion
One reads
So,
prior May
we see that
Anderson
choice,
in vain to discover
for this
reasons
Halvey Halvey
court in
did
hold
it
unless
is found in the remark that for
process
by publica-
in child
actions
* * *
'rights
precious
the wife
far more
Ford,
again
tion
Ford v.
invalid
property
then
will be
cut off’ in
cus-
Anderson,
supra, subsequent May
tody proceeding. The force of this cardi-
supra, pointed
spe-
out this fact had been
ac
self-evident,
consideration is
it
but
cifically
Halvey
Halvey.
reserved
seems to me
misapprehension
to reflect a
foregoing,
apparent
From
that a
custody proceeding
nature of a
majority
of the court have
of the members
or a revision of the
that have
views
here-
awarding
never held
decree
prevailed.
tofore
children in divorce
not entitled
proceedings
“ * * * I fear this
will au-
decision
solely
proc-
to full faith and credit
because
*6
thor
interpretative
new confusions.1 The
parties
ess
one of the
was had
concurrence,
interpretation,
if it be a true
publication
or
constructive service.
seems to
custody
reduce the
of
law
rule of seize-and-run.
I
affirm
would
question here
been
presented
The
has
the
they
decision of the Ohio courts that
much litigated in the
state courts.
several
respect
should
the
the
of Wis-
mobility
population
The increased
of the
has
court,
consin
until it or some other court
brought
corresponding
with it a
increase
equal
with
jurisdic-
or better claims to
litigation.
in the
volume of
should
modify
tion shall
it.”
stated at the outset there is considerable
ques-
dealing
confusion
with the
cases
Supreme
The
Court of the United States
by vague
tion occasioned
definitions and
problem
had this
it in
before
1962 Ford
problem
varying factual situations. The
is
Ford,
371 U.S.
L.Ed.
S.Ct.
lucidly
stated most
in
law and unavoidable further recognizing that are few rules with- there exceptions, nevertheless, I
out believe HILL, joins in J., P. this EDWARD are there some definite conclusions dissent. foregoing from cases and can be drawn they are as follows: authorities chil- pertaining Orders full in one state must be awarded
dren subject credit states faith and in all other exceptions: following to the subject opened be If the award is rendered the and altered in state where and credit will doctrine of full faith Gene DAMRON, Appellant, preclude opened being it from and altered provided having jurisdiction other state DAMRON, Appellee. Loretta upon the basis are made modifications entry transpiring after the facts Appeals Kentucky. Court original order. June upon nothing 2. Technical domicil based domicil of the father is
more than judg- jurisdiction. And doubtful basis will not this fact alone ment upon the mother a valid binding without However, process her. service position in doubt and is much Anderson, supra, and of the court in question- the authorities therein cited able. to the ma- prior last resort
No jority opinion in this case has ever before coupled held constructive service not sufficient presence of the children was to make grant such and credit. entitled full faith judgment' opinion hand takes on one majority position that present in this children are because the children is “welfare of consideration” always outstanding *9 had that Indiana other hand decrees on the acknowledging that while Apparent- there. chil- ly call “the welfare what consideration primary entitled to dren” is