*1 upon Wyoming, the relation of STATE KLOPOTEK, Petitioner,
Raymond W.
The DISTRICT COURT OF SHERIDAN
COUNTY, Wyoming, and the Honorable thereof; McEwan, Judge Boni-
Leonard Cline, Respondents.
ta 5356.
No. Wyoming. Court of
Dec. *2 Wolfe, Sheridan, respondent
James N. for Bonita Cline. Hirst Applegate,
Glenn Parker of & Cheyenne, respondent the Honorable for Leonard McEwan. Phelan, Q. Cheyenne, as Guardi-
Bernard an Ad Litem for Juanita RAPER, J., Before C. and McCLIN- TOCK, THOMAS, ROONEY, JJ. ROSE ROONEY, Justice. child-custody is a case. It came to
This petition Raymond Klopotek, us on a W. relator, (hereinafter referred to as fa- ther) (1) corpus, for: a writ of habeas (2) a writ of to be directed to McEwan, Judge, the Honorable Leonard District, prohibiting further Fourth Judicial proceedings child-custody pend- in the case ing County. before him in Sheridan After issuing why order to show cause an prayer granted should not be receiving responses and after thereto from Cline, Judge McEwan and from Bonita Iris party the other (hereinafter referred to as district court mother): (1) Q. appointed we Bernard Phe- lan, law, attorney Cheyenne, Wyoming, at Ad Litem for minor Juanita Ade- Guardian Klopotek, appear an and we directed him to herein; (2) represent her interests following we made the order: “A Petition for a Writ of Prohibition and Corpus having for a Writ of Habeas been court; duly presented to this and suffi- having cient cause been shown therein to require inquiry; Respondent, further The District Court Sheridan Wyoming, and The Honorable Leonard McEwan, (hereinafter Judge thereof re- McEwan) Respondent having ferred to as therefore been ordered to show cause why further in the district court in matter this should not be abso- restrained; Mc- lutely Respondent having duly ‘Response Ewan to “Or- Why der to Show Cause Writ of Habeas Corpus and Writ of Prohibition Should Badley, Fred R. Dollison of Supreme Rasmussen & Not Issue” entered Court Shoumaker, Sheridan, petitioner. August 1980’ in which he averred restraint, any,
that the if of Juanita Ade- directing Respondent Bonita bywas Bonita Cline and not Klopotek an produce Cline to the body of Juanita Ade- McEwan, and in which he Respondent Klopotek before this court at 10:00 belief issue is indicated his that the ‘Can October, day A.M. on the 29th 1980at age is over 14 years minor who have Courtroom, Supreme Court *3 guardian appointed of his or her choice Building, Cheyenne, Court Wyoming, it is provided by as Law or does the “FURTHER ORDERED a copy that of Custody Child Jurisdiction Act” “Uniform for a Corpus Petition Writ of Habeas preclude selecting a minor over 14 from be filed in this case and that Petition Cline, guardian’; his or her and Bonita itself be returned to Petitioner with this party to the in the pursuant Order having requested district and re- (re McEwan); Respondent it is permission response, ceived to make and “FURTHER ORDERED that such writ response having pur- such been made-all Respondent be upon served Bonita Cline provisions Rules suant to the of 3 and 4 County, of Wyo- Sheriff Sheridan court; of and this ming, deputy. or his “It that appearing Respondent McEwan ORDERED a copy “FURTHER that of contemplates further in the this Order be furnished counsel for him; pending now before Petitioner, for Respondent, counsel coun- questioned juris- that Petitioner has his Cline, sel guardian for Bonita and to so; diction to do that actions ad Klopotek.” litem for Juanita Adean taken him amount to the exercise of hearing, after the we Immediately made jurisdiction; may such and that he not jurisdiction; following or now Order: have had have such and “After of pleadings, examination memo- “It that appearing Respondent McEwan papers randa briefs and other on file be- restraining is not of Juanita hearing fore oral argu- the Court and Klopotek; Adean but such that restraint ment, parties all or their counsel be- Cline, subject Bonita who is ing present, the Court finds: jurisdiction of this court in this matter by jurisdiction. “1. That Court has this herein, response virtue of her filed and “2. That Petitioner is entitled to the appearing-that “It of the facts this mat- Klopotek of Adean Juanita as a dispute ter are in are not contained matter law accordance of us, record before Court, Judgment County of Barron hearing “ORDERED that a before the Ray- Wisconsin in the case of court relative to the questions law Klopotek Klopo- mond W. v. Bonita Iris to the pertaining application for a writ of tek, 27,1969, dated March as amended on be, prohibition is, hereby and the same 13,1976 4,1979 August and June and the set A.M. 29th day for 10:00 on the unlawfully mother has retained October, 1980, at Court of the child. Courtroom, Supreme Building, Court Generally “3. favor of Petitioner Cheyenne, Wyoming, at which time Peti- against Respondents. tioner, McEwan, Respondent Respondent is, therefore, “It Klopotek Bonita Cline Juanita Adean that a writ “ORDERED may present argument they such as issue. desire, 4(e) pursuant to Rule Respon- ORDERED “FURTHER that of this It is court. dent, Cline, day Bonita forthwith re- ORDERED “FURTHER that Petition linquish Klopo- of Juanita Adean be, Corpus for Habeas same here- Raymond tek to her W. father by is, application denied insofar as McEwan; pertains Respondent “FURTHER ORDERED that the matter Corpus expenses including that a Writ Habeas issue out those of costs and period ex- the visitation Wyoming.2 When are taken litem be and ad the Guardian 1, 1980, refused to she August pired advisement. under to the father. the children return opinion “FINALLY ORDERED follow.” of the Court also filed herein Exhibits to petition by (1) copy the facts background and a certified procedural include: Court, disposition Fourth necessary for our District this case as the mother peti- 1980, the exhibits to District, August contained in were Judicial copies of a certified These include ap- tion. she be prayed that the mother which 27, 1969 March children; of divorce dated (2) the two guardian of pointed moth- the father and the case in which in a by the chil- of nominations copies certified August parties; an order dated er were the (Juanita the mother dren of and, an amending judgment; to be was indicated Klopotek amending such dated June order Ray Klopotek Michael age, years *4 the Circuit as amended-all from judgment (3) age); a years 12 of was indicated to be Court, Wisconsin.1 Barron State of pe- the setting McEwan Judge from notice gave court judgment, the Wisconsin In the guardian for a of a appointment tition for the minor children custody and control of father, (4) the a motion of hearing; mother, and the parties the to the 8, the order quash 1980 to August filed not be removed that the children ordered guard- of a setting hearing appointment for permis- without the state of Wisconsin from lacked that the court grounds on the ian 13, 1976 August The of the court. sion. “ * * * ac- jurisdiction to hear the above pursuant judgment was amending the order tion, De- Amended Divorce because the parties. It transferred stipulation of the County the Barron Cir- cree entered the two mi- physical custody of “legal and Court, on the 4th of Wisconsin cuit State Nena parties, to wit: nor children June, to full 1979is entitiled day of [sic] Ray Klopo- and Michael Klopotek Adean the United faith and credit under States father, pursuant provided tek” of Petitioner and because Constitution party “shall stipulation, that neither to such violations of Bonita Iris Cline’s [mother] the minor children from remove the said Act.” Custody Jurisdiction the Uniform changing purposes of of Wisconsinfor State Finally, among the exhibits included this court.” residency permission without (1) peti- a copies were certified of: herein 4, amending judg- the 1979 order The June filed Au- corpus, a writ of habeas stip- tion for pursuant was also ment as amended Court, 18, Fourth that the in the District parties. provided gust the It 1980 ulation of District, father, judgment praying not in conflict the for original divorce Judicial remain in full force to restore directing with order an order the mother legal father; specified (2) that “the effect and it a custody of the children to the minor children custody of the two physical on the transcript hearing proceedings plain- with the parties shall remain (3) corpus; and petition for a writ of habeas order of the tiff until further granting petition [father] insofar as an order rights to the provided It visitation court.” deny- applied Ray Klopotek to Michael sum- period five week each mother for “a Adean ing applied it insofar as it to Juanita Friday last of June” beginning mer on the hearing, At the the court indi- pay the costs of trans- with mother to petition inso- denying that it was cated the visitation. portation to effectuate Klopotek applied far as it to Juanita guardianship pro- in the “perhaps because by visitation was exercised Such years child is fourteen ceeding where the were mother in June 1980. The children Sheridan, supersede that that could age in or older present taken to her residence Judge hearing and moved from Wis- 2. The mother remarried 1. At a held in this matter before Sheridan, Wyoming. McEwan, court, mother consin to the father and the authenticity acknowledged of this and orders.
227
provisions
naming
appointment may
the divorce decree
Such
be made on the
someone who has
child.”
petition of a relative or
person
behalf
or incompetent
minor
or on
proper disposition
The
of this case is
petition
age
of a minor over the
somewhat obscured
the fact
(14) years.
making
fourteen
Before
applica-
and the
appointment,
judge
the court or
must
a
part
writ of habeas
tion for
were
given
any person
cause notice to be
of the same
district
minor,
having
care of such
incompe-
The
court.3
matter comes to us with the
person,
tent or insane
and to the relatives
entanglement.
same
residing within
county.”
(Emphasis
supplied.)
PROHIBITION
object
of writ of prohibition is
There is a distinct difference be
restrain
action of inferior courts
tween a guardian
guardi
of a
acting
jurisdiction.
excess
their
Poling
of an estate.
v. City Bank &
Hansen,
rel.
Wyo.,
State ex
Pearson v.
409
Company
Fla.,
Trust
Petersburg,
of St.
(1966);
P.2d 769
ex
State
rel. Man Aush
(1966).
So.2d
guardian
A
erman,
410,
Wyo.
(1903),
ceedings
recognized
proper
be combined with a
as a
remedy to be used
14-2-106{a),
pursuant
divorce action
parent
§
pos-
one
to recover
14-6-229,
W.S.1977), to
14-2-301 and
§§
parent
session of a child from the other
abandoned,
delinquent,
relative to
Henson,
after divorce.
v.
Wyo.,
Henson
384
children,
neglected
abused or
and to
Bowman,
(1963);
P.2d 721
Jones v.
13 Wyo.
judi-
20-2-113 relative
20-2-106 and
§§
79,
(1904);
Muir,
that “the
of the writ of habeas
HABEAS CORPUS
corpus
suspended unless,
shall not be
when
in
Although commonly
case of rebellion or
public
used to determine
invasion the
propriety
pro-
safety may require
of restraint
in criminal
it.”
Section 1-27-
ceedings, a
corpus
101(a)(v),
habeas
action has been
recognizes
repetitive
to,
corollary
expansion
original
affecting
subject
This is but a
decree
was
upon,
long standing general
rule as stated
rendered.”
229
(1908).
doing so,
of habe-
availability
proper
for a writ
In
we find that
previous
by requiring copies
jurisdiction over
corpus
as
this matter
is with the
petitions which have been refused to be Wisconsin courts and not with us.
petition. We
appended
present
to a
find no
When child
in a
awarded
di-
child-custody cases or
exception, be it for
vorce decree in one state and the child-cus-
otherwise,
availability
repeated
tody question is later
a
presented to
court
corpus
in our
petitions for a writ
habeas
state,
a
another
number of considerations
constitution or statutes.
have entered into the determination made
“ *
**
appeals by
respon
‘To
allow
by the courts as to whether or not
court
judgment
dent from the
dis
has,
take,
jurisdic-
second state
or should
charging
applicant,
defeat the
would
domicile,
tion.
presence
These include
in
speedy
writ
purpose as a
state,
lack of
in
state
first
prompt
against
illegal
relief
detention.
decree,
original
change
render
in
*
* *
Tuck,
Geyer
supra,
(if
modify
conditions
the first court could
at 925.
decree,
its
need
give
the second court
more
We
anticipate
can
cases of child
effect
than
conclusive
to it
could the first
neglect
necessity
court?),
or abuse in which the
shopping,
stealing,
forum
child
best
speedy
child-custody
child,7
relief in a
case is as
credit,
interests
full
faith and
pertinent as in
criminal
The
abuse, abandonment,
a
matter.6
comity, child
etc. 1
nature
the writ
habeas
Restatement,
inviolate
cor
Conflict of Laws
2d §
pus
as mandated
our constitution does
(1971); Ehrenzweig,
Recognition
Interstate
exceptions.
not allow for
Such a writ in all
Decrees,
of Custody
51 Mich.L.Rev.
cases,
including child-custody
restraint
(1953);
on
11.5
Clark
Domestic Relations §
cases, may be
in this
although
court
(1968);
Corpus
39 Am.Jur.2d Habeas
92§
the issuance of
similar writ
have
a
(1968);
Corpus
39 C.J.S. Habeas
parte
been refused
Ex
district court.
Madson,
338, 169
(1917). Or,
P. 336
We need not
various
address these
noted,
appeal
be taken to
considerations inasmuch as our
in
decision
from
taken
court
action
district
single
this case can result
considera
child-custody
court
such a
writ
cases.
enforcing
tion. We have no
reticence
us,
presented
Before this matter was
judgment and orders
of Wisconsin
granted
peti-
district court
the father’s
in this matter in view the mother’s defi
corpus
tion for writ of habeas
as to Juani-
ance of
Her
orders.
Klopotek’s
ta Adean
brother
denied
but
bad faith and unclean hands are such as to
pro-
as to Juanita
make
to consider
unnecessary
ceeding
for habeas
district
*7
elements which could result in a different
already
court was thus terminated. As
not-
stipulated
determination. The
mother
ed,
ruling
appealable,
the
have been
agreed that
the child could leave the state
attempt
appeal
but the father
not
to
it.
did
court,
only
by
Wisconsin
as ordered
the
Rather,
a
application
another
for writ of
the child could
be removed from
not
the
habeas
was made to us and
mat-
changing
the
the
resi
purposes
state for
original proceeding.
ter was before us on an
dency,
period
and that
the
of visitation to
only
the
each
a
provisos
mother
summer be for
One of the
of habeas cor
jurisdic
agreements were
pus proceedings
inquire
period.
to
five-week
These
is
into
Madson,
incorporated
order.
parte
supra;
tional matters. Ex
into the Wisconsin court
Sheffner, Wyo.
these
Hovey
are found in that case. The Court proposi- there set forth WEDDLE, Appellant Richard Dale tions, Beale, with quoting approval from (Defendant), 144.3, Laws, Conflict of that aof § domicile; parent child one carries with Wyoming, Appellee STATE of and that a state which is temporary (Plaintiff). residence of child and not the domicile No. 5318. a right cannot confer to custody. The court quote went with favor from the Re- Supreme Court of Wyoming. Laws, statement of Conflict of Dec. proposition that: “ * * * through ‘A state can exercise its courts to determine the custo-
dy children or create the status person only if domicil the person placed under ” * * * guardianship is within the state.’ Lake,
Lake v. supra, Wyo. at
P.2d at 839.
When the District Court Sheridan Coun-
ty provisions apprised was for custo-
dy decree, in the Wisconsin then was
chargeable knowledge with that it was
without over the guardianship
proceeding, and the writ of
that appropriate. reason is most The Wis-
consin was entitled to full faith
and credit to that end.
This rationale is pro- consistent with the Custody
visions the Uniform Child Juris- Act,
diction particularly portion
definitions’ section which relates state, 20-5-103(a)(v),
home It W.S.1977. compatible purpose of that stat- 20-5-102, W.S.1977,
ute as set forth in §
and carries legisla- out the intention of the jurisdic-
ture. Since the was without it probably
tion necessary to consider juris-
whether the trial court exceeded its
diction. notes Clark on Domestic Rela- diction.” tions, supra, p. 11.5 at § jurisdiction We did not exercise our to The Wisconsin court has modified modify custody judgment and order of in this matter on two occa- its court, we exercise the Wisconsin but did sions. There is no indication that will not mother, by ordering who was be- again proper reason therefor do so if Klopotek, with fore us Juanita presented to it. father, relinquish custody of the child to the who was also before us. conformity with Our action herein is Custody Jurisdiction Uniform Child THOMAS, Justice, concurring. Act,8 Wyo- adopted which has been in both ming Among purposes Wisconsin. majority opinion I in this concur (see therein act as set forth 20-5- § any disagreement case. I do not have 102, W.S.1977) principles of law there set forth. I do are:. “(v) however, proper, deter other uni- not deem it to note that To abductions and majority opinion lateral removals of children undertaken while the holds that awards; jurisdiction to obtain district court exceeded the con- 3-2-101, W.S.1977, attempt- ferred “(vi) relitigation To avoid de- “wholly ed action of the district court was cisions of other states in this state insofar Lake, jurisdiction.” without Lake v. feasible; 375, 413, “(vii) To facilitate enforcement states; custody decrees of other Cline, petitioner Mrs. as the in the district U * * * court, sought only to invoke court under W.S.1977. 20-5-109(b), provides: Section authority That statute on the dis- confers required in the interest of the “Unless appoint guardians trict court 20-5-115(a), subject child and W.S. persons and estates of minors “who reside court shall not exercise its ” county (empha- or have estates within the modify decree of another state added). allege sis does not petitioner if without consent