*1 (d) еngage in prejudicial conduct that is justice; the administration of ....
RECOMMENDATION foregoing
Based Findings of
Fact, Law, and Conclusions of the Commit-
tee recommends that Su-
preme Court Respondent disbar the practice law, Respondent assess
the Committee’s costs in the amount of
$4,149.55. March, day
Dated this 6th 1989.
/s/ David F. Palmerlee Palmerlee,
David F. Chairman
Wyoming State Bar
Grievance Committee
P.O. Box 109
Cheyenne, Wyoming 82003-0109
(307) 632-9061 GOSS, Appellant (Plaintiff),
Martin J. (Defendant). GOSS, Appellee
Pamela J.
No. 88-267.
Supreme Wyoming. Court of
Sept. *2 Casper, appel-
Phillip Willoughby, T. lant. Stevens, B. and Ann
John M. Burman Faculty Linda L. Supervisors, Goff Gerstein, Interns, Legal M. Student Donald Services, College Law, Legal óf Laramie, University Wyoming, ap- pellee. URBIGKIT, MACY, THOMAS,
Before J., GOLDEN, JJ., ROONEY, Retired.
THOMAS, Justice.
here, guiding
controlling
issue
case,
suffi-
of this
is whether
resolution
made on an ex-wife
cient service was
(mother)
for Modification of
a Petition
Judgment and Decree
vest
Order
jurisdiction to enter a
court with
district
modifying
judgment
default
Order, Judgment,
and De-
provisions of
appeal,
divorce case.
cree
Awarding
Order
taken from
Custody of the Minor Children to
Legal
Judgment for Past Due Child
Defendant—
in a
entered
Support that was
mother,
choose
initiated
order,
they
merits of that
to debate the
validity of the earlier
question
do
obligation to raise
We have
default.
motion,
jurisdiction on our
questions
however,
framed
conclude that the district We consider
issues
and we
jurisdiction
respective
court was
to enter
in their
briefs from the
without
modifying
cus-
judgment
default
the child
perspective
presents
that the case
an effort
Order,
tody provisions
Judgment
gain custody.
by the father to
We address
jurisdic-
Decree. The effect
that lack of
because,
perspective
those issues
tion is
that the
stated, they
validity
assume
of an
minor children
father
custody pro-
earlier order that modified the
*3
void,
proceeding
initial modification
was
Order, Judgment
the
vision of
and Decree
proceeding
by
subsequent
initiated
awarding
by
custody to
father.
the
Based
the mother
resulted in the
which
parties
upon
assumption,
argue
that
the
appeal
unnec-
from which
is taken was
requirements
modifying
the usual
cus-
essary
quo.
adjusting
in
of
the status
terms
tody
premise
the
that this
The several claims of error can be
by
wife
the
was de-
initiated
assumption that
only upon
sidered
the
the
quo and,
signed to alter the status
there-
joined contemplated
by
issues as
an effort
fore,
evidentiary
certain
burdens were im-
(father)
the divorced
to
a
husband
obtain
posed
the
the
mother.
In
absence of
awarding custody
valid order
of
minor
the
jurisdiction in the district court to enter the
children
affirm
to him. We
the decision
first order that modified child
all
awarding
made
the district court
custo-
assumptions
of
the
the case now before
dy to the mother.
us are erroneous.
Goss,
In
Appellant
the Brief
J.
Martin
Order,
By
Judgment
an
and Decree en-
appeal
the father
the issues on
to
asserts
30, 1981,
July
marriage
tered on
the
of the
be:
parties was dissolved. A divorce was
by failing
“1. Did
court err
to
the trial
granted
father,
to
custody
and
custody?
enforce
order of
its
three minor children of the
ruling
“2. Did the trial court err
placed with the mother. The father was
presented
evidence
was sufficient
to
visitation,
rights of
awarded reasonable
custody
award
the minor children to
required
support
pay
and he was
to
child
appellee?
per
per
the amount
month
$100
child.
“3. Did
court err
its
the trial
and abuse
Each
subsequently
of the
remarried
awarding custody
discrеtion
minor
of the
and, August
1983,
living
were
both
appellee?
children to the
Germany. The father was stationed there
“4. Did the trial court err
matter
as a
Army,
as a member of the United States
failing
of law
to consider
best
living
and mother
there because of
interests of the children in a child custo-
duty assignment
her
husband’s
new
dy dispute,
by considering instead
Army.
the United States
The mother took
only the best interests and
wishes
period
a
father for
mother?”
that
prior
visitation
was to end
to the be-
Appellee,
In the Brief
mother sub- ginning of their
term
new school
on Au-
mits her own statements of those
issues
gust
1983. Although the father was
follows:
residence,
the mother’s
he
aware of
had not
properly
“Did the
court
exercise
seen
children in the more than
two
custody
discretion in
child
days
years since the divorce. Three
before
appellee?
begin,
school
asked
mother
justifi-
legal
“I. Did the trial court have
her,
return
father to
the children to
but he
custody
cation to not enforce its earlier
Instead,
Septem-
did
return them.
on
order?
23, 1983, the
ber
father caused
be filed
“II. Was there sufficient
evidence
divorce case Petition for
parent
proper
find that
was the
Order, Judgment
and De-
Modification
custody?
to receivе
prayed
he
cree in
for modification
which
permanent
custody
“HI.
him
granting
Did The trial court consider the
care
best
In a letter to his counsel
interests
children?”
the children.
record,
April
mean-
father
tinued until
is included in the
that
time,
Support
attorney,
Temporary Custody
dated
to a letter from the
refers
5, 1983, requesting
August
information
had
on
Order Continuance
been entered
children,
certainly sup-
which
8, 1987, awarding temporary
September
about
planned
that the father
ports
inference
proceed-
to the mother. When
period
the visitation
to seek
before
28, 1988,
April
ings were recommеnced on
was initiated.
presented
that
the father
evidence
dating
had intended
mother had been
attempted
process
serve
on
The father
plead
marry
recently
a man
had
who
through
by certified mail
mother
notice
charge
guilty
sexually assaulting
army post
office address
addressed
child. The father
the female
contended
re-
her
That letter was
new husband.
maintaining
the mother
her
rela-
marked “re-
postal
turned
service
individual,
tionship
argued
he
The father then at-
fused
addressee.”
demanded that
by publi-
behavior
tempted
upon the mother
*4
immediately
the three children be
Casper
cation in the
Star Tribune.
peti-
changed to him. The district court con-
respond
the father’s
mother did
entered;
continuing
tion;
the mother’s
was
sidered
association
her default
modifying custody
entered on
the
a
with
sexual offender
threat
the
children,
27, 1984, awarding custody to
January
the
it
welfare
and
concluded
Meanwhile, Germany,
in
the moth-
appropriate
father.
it
that would be
allow
she,
the fa-
had retrieved her children from
er
mother some time to decide whether
custody
help
fact,
of German
ther’s
with
would continue that
association.
short
before
police.
granted
Thаt occurred a
time
custody then
Temporary
filing of the modification order. From
complet-
father until the trial could be
the children
returned until
the time
were
con-
sought
The father later
a further
ed.
1987,
provided
no
December of
father
tinuance,
tem-
and the court then returned
the children
support,
child
contacted
while,
custody to
at the
porary
the mother
once,
request
and made no
for visitation
1,
time,
August
for
setting the trial
same
During
period, he knew
them.
1988.
the mother and the chil-
where to contact
trial, the court announced its
After the
dren.
decision:
20, 1987, mother, continu-
On March
“I
have
that each of
don’t
doubt
original
proceeding,
divorce
filed
the children
their
these
love
for
Petition for
Or-
Modification—Motion
However, I
way.
seldom see
own
Granting
Custody
Temporary
der
—Motion
like this.
Granting
Custody—
Permanent
for Order
for Mother’s
“There can be no excuse
Enter In-
Support
Child
Motion to Set
involving
as those
Mr.
activities as far
Withholding
Personal service
come
Order.
I
she continued a rela-
think
Patterson.
upon the father.
pleading
was made
thought
tionship
would have
when one
entered on
petition alluded to the order
that.
be hate rather than
there would
sought permanent
January
hand,
can be no
other
“But on the
for the moth-
the minor children
ignore
chil-
Mr.
for
Goss to
excuse
were
The issues in the
then
er.
Mother
years and leave the
dren for
Answer,
a Motion for Order
joined by an
chil-
to raise the
the children
alone with
Examination
Require Physical and Mental
dren.
Children,
for
and Motion
of the Minor
for either
pursuant
to which the
be no excuse
Physical Custody,
“There can
and dis-
earlier
as better
thinking
themselves
sought enforcement
father
order,
of the children.
regarding
filed on June
welfare
all
for the
any excuse
can’t be
“And there
petition was
on the mother’s
his conduct with
11, 1988,
Father
January
on
but
commenced
discussing the case
he had them
when
proceedings
were
not finished and
them, belittling
uphold
the Mother as he
is
Our rule
that we can
did.
decision
of a district court
it is sustaina
months.
with the
asked
“Back
#
father for a
I
some
#
know there
'83, apparently
help
n ?
period
[*]
left
the Mother
the children
[*]
argument
what,
[*]
six
Milton v.
ble on
(Wyo.1987);
1988); Ferguson
(Wyo.1986).
any theory
Mitchell,
Walker
v.
Furthermore,
supported
Ferguson,
proceedings: void, marriage or the affirm or declare a under this act making “Before a decree en- any decree therefor modification oрportunity notice and be reasonable suit, in such defendant tered contestants, given to the heard shall be state, or his resi- a non-resident rights any parent parental have whose ascertained, or he con- dence cannot be any previously not been terminated himself order to avoid service ceals physical custody of the person who process; persons child. these out- If opportunity notice and side this state given pursuant “(f) be shall be heard Requirements by publi- service 20-5-105, Section W.S. publication W.S. 20-5-106. cation.—Before service added). (June Repl.) (emphаsis made, party, can be affidavit agent attorney, his be stat- required juris- for the exercise or must “Notice filed diction outside state a summons cannot over state, given shall in a manner on the defen- be be made within this notice, give may by publication, actual calculated to to be served dant known, address, be: stating his is unknown and cannot his address “(i) By personal delivery outside this be diligence ascer- with reasonable prescribed manner for ser- state in the tained, one state; and that the case is of those process vice of within this *6 (e) rule; paragraph of this mentioned “(ii) presсribed by In the manner the law filed, par- is and such affidavit is place in which the service made n ty by publi- to service may proceed make process place in an for service of that added). (emphasis cation.” general its of any action in courts jurisdiction; record, in the executed The affidavit “(iii) attorney, of mail addressed to By any form father’s states: requesting and to be served to attempt “1. made serve An receipt; or entitled matter the above Defendant “(iv) by including mail, receipt request- the court by As directed return certified publication other means Affi- returned to ed. letter was Such notifica- Section 20-5- by post tion are as marked office ant’s office ineffective.” 106(a) (emphasis (June Repl.) add- by addressee.’ ‘refused ed). “2. is not a resident of Defendant Country that, living in the Wyoming, the time he The father concedes at State attempted petition, Germany. the moth- service his Wyoming in the state of er was not matter “3. minor children this upon accomplish he that did not service Wyoming, of the State residents personally by either or mail. Germany with living Country of in the father. their natural court, pursuant to the If the district is in this matter “4. The natural father statute, to the father accom had directed Wyoming, but (the a resident State publication is plish record service Germany. Country of living is respect any to such direction silent with originally therefore, any judgment purportedly “5. This action com- grounded upon menced as under the that a divorce action service is rendered Number, Lonquest; Emery above-Civil Action Emery, void. Court continuing jurisdiction Supply, has over P.2d 745 National Upon request determining this matter inasmuch is a as this that void, judgment modification of the Decree of Divorce. is the court no discre- respect judgment, tion to such a but “6. Inasmuch as the has re- Defendant powеr grant must exercise inherent service, foreign country fused and is in a judgment. that Emery, relief from service, avoiding is is that Plain- that P.2d at 749. tiff has no other method available to Defendant, serve the because The father failed to proper effect need, is a dire the file and evidenced petition his modify service of to the custo Complaint, for the to hear this Court dy provisions of the divorce decree matter, your affiant states this is an court, mother. district appropriate Wyo- case for service reason, not acquire personal jurisdiction did ming 4(e)(9).” Rules of Civil Procedure mоther over the and could not valid enter a The affidavit is to judgment against sufficient establish default her because that the mother appear. could not be served within her failure The order transfer proper ring custody and that the case was a of the three children from by publication (assuming for service mother to father was void no and of directed). court had so The affida- effect. At time the mother commenced comply requirements does not vit with the petition modify with her 4(f), Rule It is silent with legal custody W.R.C.P. she still had over respect address, to the Order, mother’s and it does pursuant original (bеcause state in Judgment the alternative coun- and Decree. While the father not) could sel that the address necessary mother’s is did not deem to seek affirma unknown and response cannot be ascertained in his tive relief to the mother’s through diligence. petition, reasonable to the extent that issues were present the court adjudicate, pointed requir We have out that establishing change burden of a substantial affidavit, such an prior permitting in circumstances so as to warrant a modifi by publication, assuring assists Order, cation of Judgment by publication that service occur will father, assigned Decree had be means, where service other more certain not the All foregoing mother. con is give notice, actual either un disposition sistent with ultimate impractical. Lonquest, reasonable or and, indeed, district court com some of the at respect filing 998. With ments in record manifest affidavit, such our rule that the re *7 recognition adoption court’s of these quirements 4(f), of Rule C.P. are mini W.R. principles. Thus, mal and demand compliance. strict even where the the willing affidavit states last We are to assume that defendant, known address of the it is defi may recognized the trial court have amend present cient it does not a pleadings also state ments to the sufficient raise to present address or that the propriety address cannot issues the as to of cus diligence. through be ascertained tody respect due We to father. The rules with deficiency deprives have held that such a to of the the action district court in such jurisdiction the district court of over the well matters are established. The person to prevents modify be served and it from seeking provisions of a child entering binding judgment. a valid and custody decree must assume of the burden deficiеncy, demonstrating The effect of that rule is a to the court a substantial like that reflected change the affidavit coun affecting the circumstances instance, for the occurring sel father in this makes child’s welfare and, by publication entry invalid initial only decree. Not must recognized principle of of a changes so and a “violation that those the court find being well law.” material to the substantial and modification, but warrant child as to ERROR PROCEDURAL the desired modi must conclude that it also in the best interest
fication will be opinion “the con- majority The considers P.2d 1054 Ayling Ayling, child. trolling an earli- issue here” be whether 443; Tanner, 482 P.2d Leit modifying judgment1 awarding er ner, will not disturb 713. We appellant void the children to was be- regard in decision of the trial court this jurisdiction court lacked to enter cause the er procedural some serious the absence of judgment. majority The of the court such ror, law, or a of a principle violation a modifying judgment such decides that The grave of discretion. clear and abuse properly because was not void discretionary trial court does abuse appellant’s petition modify served with if, found authority the circumstances original custody provisions of the the child record, reasonably from the could have majority opinion decree.2 The then divorce Kreuter, as it did. Kreuter v. concluded that, appellee already legal had *8 added). given appellee. 5—106(a)(iii) (emphasis W.S. 20— mailing, with- interest is whether or Of additionally handicapped court was 3.The more, petition appellant out of such interrupted and that the trial was the fact Custody Jurisdiction Act the Uniform Child delayed long periods time on more than jurisdiction the notice when sufficient that some fact one occasion and marked, here, by addressee as "refused returned testified out order. witnesses provides that [appellee]." Uniform Act Such may be: such notice 314 was, is,
ABUSE OF DISCRETION
pervert,
AND VIOLA- Patterson
and he
sexually
children, S.G.,
A
TION OF
PRINCIPLE OF
assaulted one of the
LAW
female, age
years,
11
period
over the
The fact that the “welfare and best inter-
years. Finally
reported
one and a half
S.G.
ests” of
paramount
the children are of
the assaults to her teacher —not to her
determining
sideration in
their
teacher,
mother.
In the note to her
she
recognized
become a
principle of law.
said,
help
“I need
you help
píese
can
us
Harden,
47,
Wyo.
Linch
26
315
party s
by
with the successful
evidence and
have been served
this failure
could well
gives
party
the evidence
simply
successful
by appellant
created ar-
contacts
may
every favorable inference
be rea-
having
ef-
guments and
adverse
tensions
fairly
Broyles,
from it.
sonably and
drawn
receipt of
fects on
children.
1119; City
Springs,
711 P.2d at
Rock
in
by appellant
appellee
from
children
successful entirely presented
sideration
evidence
unsuccessful
that conflicts
event,
further
cannot inflict
appellee’s
Patterson
future
ruled that
The trial court
he
released
on the children until
basis
harm
Patterson would be a
association with
custody statutes.
confinement.
further consideration
notes
since
(Wyo.1986); Fanning
the children
she initiated
(Wyo.1986); Ayl
Fanning,