Kahre v. Kahre

OPALA, Justice,

dissenting.

I

INTRODUCTION

The court nullifies its early change-of-custody stay by leaving undisturbed the trial court’s later mid-appeal modifications with contravening provisions. Because — insofar as they affect the premandate access-to-the-children regime — all the trial court’s post-stay orders are clearly coram non judice, 1 I *1367 must recede from today’s tacit approbation of sheer lawlessness. I write separately to expose the naked nisi prius intrusion into this court’s subject-matter cognizance, which lies concealed beneath today’s deferential silence. I would reach this critical issue by (1) analyzing generally this court’s mid-appeal power to suspend the effectiveness of nisi prius decisions pendente lite, (2) explaining the residue of the trial court’s post-stay power to affect the premandate regime of parental access to the children, and (3) concluding that in this case the trial court’s mid-appeal incursion into premandate custody (and visitation) is facially void.

II

THE CRITICAL ANATOMY OF APPELLATE LITIGATION

Upon a vote of 5 to 4, 2 this court suspended on September 26, 1994 the mid-appeal effectiveness of the trial court’s permanent custody award to the mother. By this act the court froze in the father — for the duration of appellate contest — the control over custody (as well as visitation). 3 In short, the stay order absolutely ousts the nisi prius cognizance over any issue of pendente lite access to the children.

In the face of this unequivocal stay the trial judge entered several orders — all to be effective either immediately or before man date — by which he rearranged the parties’ rights vis-a-vis their children. Although the father vigorously pressed numerous jurisdictional challenges, the trial court obliviously moved ahead without pausing for a mean-ingjul probe into its surviving post-stay cognizance immediately to affect parental access to the children. The litany of nisi prius eoram non judice orders includes:

(1) The February 27, 1995 order directing that the children not be removed from OHahoma and granting the mother supervised visitation.

(2) The March 2, 1995 order once again granting the mother supervised visitation.

(3) The March 7,1995 order spelling out the mother’s visitation rights by directing the father to restrict paternal grandmother’s access to the children and vacating a custody order in favor of the OHahoma Department of Human Services.

(4) The March 30, 1995 order granting the mother custody and denying the father any visitation rights.

All four of these post-stay, mid-appeal orders are facially void for want of subject matter jurisdiction. The absence of the trial court’s mid-appeal cognizance to affect in praesenti 4 any changes in the custodial or visitation regime (effectively frozen by this court’s stay action) clearly is apparent on the face of the judgment roll.

Ill

THE NATURE OF AN APPELLATE COURT’S POWER TO SUSPEND THE EFFECTIVENESS OF A TRIAL COURT’S DECISION PENDING THE OUTCOME OF REVIEW PROCEEDINGS

Both the trial and appellate courts may exercise statutorily conferred discretion to *1368 suspend, pending appeal, the effectiveness of nisi prius child custody determinations. 5 A halt to the inferior court’s mid-appeal enforcement process may be accomplished generally (1) by posting a supersedeas bond 6 , where this method is statutorily available, or (2) by a quest for discretionary stay. “Su-persedeas” differs in our usage from “stay”. The former denotes suspension of a judgment’s effectiveness pursuant to an undertaking as a matter of statutory right; the latter means suspension of the decision’s effectiveness by a discretionary act of a trial or appellate court. 7 Child custody orders fall under the stay rubric. The impact of an appellate suspension upon the trial court’s decision is explained in In re Epley, 8 where the court says “[w]hen ... a case has been brought to this court by appeal ... and a supersedeas or stay granted by the court ... the trial court is devested [sic] of any jurisdiction in the case pending the determination of the appeal, and it has no power to enforce its judgment or final order....” [Emphasis added.] Epley, supra note 7 (the court’s syllabus ¶5). When the residue of trial court’s cognizance in this case is measured, as it must, by the quoted Epley standards, mid-appeal nisi prius orders that afford the mother premandate access to her children (by custody, visitation or otherwise) are in plain contravention of the father’s full custodial control (frozen in him for the duration of the appeal’s pendency by this court’s September 26 stay) and hence facially void. Extant jurisprudence eloquently attests to the continued vitality of the Epley boundary line drawn for an orderly pendente lite interaction of trial with appellate courts. 9

IV

THE ULTRA-NARROW PARAMETERS OF THE TRIAL COURT’S MID-APPEAL COGNIZANCE

In a matrimonial dispute, a trial court’s mid-appeal jurisdiction over parental access to a child generally falls under two separate rubrics: 10 (1) Where pendente lite custody is tendered as an issue ancillary to a pending appeal 11 (this rubric, which deals with custo *1369 dy arrangements that are to govern until the final outcome of appellate contest, concerns itself with temporary orders to be effective only for the duration of the review process) and (2) where the nisi prius jurisdiction is invoked to decide an issue collateral to a pending appeal 12 (this category includes proceedings in the trial court not for pendente lite application, but those which seek to modify a permanent custody order, then on review, based on an alleged change of conditions occurring since that order’s original entry). 13

A

THE TRIAL COURT’S ANCILLARY JURISDICTION EVAPORATED WITH ENTRY OF THIS COURT’S STAY ORDER

The September 26 stay order stripped the trial court of its ancillary cognizance over pendente lite parental access to the children. That order’s unmistakable legal and practical tenor directs that the children remain with the father for the entire duration of the appellate contest. In short, this court’s stay supersedes all ancillary power which, absent its issuance, would have continued to reside in the first-instance forum.

B

THE TRIAL COURT’S COLLATERAL COGNIZANCE

While nisi prius cognizance over collateral issues remained unaffected by the September 26 stay, it could not be exercised to contravene the fixed premandate regime for custody and visitation. In short, collateral cognizance will not avail here to justify nisi prius intrusions into pendente lite access to the children.

C

CONCLUSION

When tested under both rubrics of mid-appeal cognizance the critical nisi prius orders cannot pass jurisdictional muster insofar as they affect premandate access to the children. They flunk the strict teachings of yore. 14

V

SUMMARY

The court closes its eyes to the overriding impact of its September 26 stay. It refuses to invalidate a blatant invasion of its subject matter cognizance. I would condemn each of the post-stay acts of usurpation as facially void and then dispose of the custody (and visitation) issues raised in this appeal as if none of the jurisdictionally flawed mid-appeal orders was ever in existence.

. A case is said to be coram non judice when the court in which it is brought has no jurisdiction to settle the dispute. Black's Law Dictionary at 305 (5th ed.1979). See Goldman v. Goldman, Okl., 883 P.2d 164, 166 (1994); Board of Law Library Trustees v. State, Okl., 825 P.2d 1285, 1291 (1991); Spain v. Kernell, Okl., 672 P.2d 1162, 1164-1165 (1983); Bryan v. Seiffert, 185 Okl. 496 , 94 P.2d 526, 531-532 (1939) (the court’s syllabus ¶ 6).

. Concurring in the September 26 stay order were: Hodges, C.J., Opala, Kauger, Summers, Watt, JJ.; voting in dissent were: Lavender, V.C.J., Simms, Hargrave, Wilson, JJ.

. The parties clearly and correctly understood the broad provisions of this court’s stay order to bar absolutely all nisi prius attempts at changing custody as well as visitation rights. There is pending before us now an application to modify the stay to allow the mother pendente lite visitation. It remains unresolved and ignored by today’s disposition.

.An in praesenti judicial act means one that tabes effect immediately. For example, the grant of an estate in real property is said to be in praesenti when it transfers an immediate interest in the designated premises. See Van Wyck v. Knevals, 106 U.S. 360, 364-65, 1 S.Ct. 336, 337 , 27 L.Ed. 201 (1882).

. The terms of 11 O.S.Supp.1993 § 990.4(C) provide in pertinent part:

" * * * The trial or appellate court, in its discretion, may stay the enforcement of any provision in a judgment, decree or final order [in a custody proceeding] during the pendency of the appeal * * (Emphasis supplied.)

. See the provisions of 12 O.S.Supp.1993 § 990.4(A) which govern the posting of a statutory undertaking by which enforcement of certain legislatively-defined classes of judgment may be suspended during an appeal's pendency as a matter of statutory right.

. Wilks v. Wilks, Okl., 632 P.2d 759 , 763 n. 12 (1981); 1942 Chevrolet Automobile Motor No. BA-193397 v. State, 191 Okl. 26 , 128 P.2d 448, 449 (1942); State v. Fidelity & Deposit Co. of Maryland, 179 Okl. 437 , 66 P.2d 85, 87 (1937); Howe v. Farmers' & Merchants’ Bank, 155 Okl. 284 , 8 P.2d 665, 667 (1932); In re Epley, 10 Okl. 631 , 64 P. 18, 20 (1901).

. Epley, supra note 7 .

. Wilks, supra note 7 at 763; see also Burnett v. Jackson, 27 Okl. 275 , 111 P. 194, 195 (1910); Herbert v. Wagg, 27 Okl. 674 , 117 P. 209, 211 (1910).

. The terms of 12 O.S.1991 Ch. 15, App. 2 (Rule 1.31) provide in pertinent part:

"(a) For the purposes to be stated the trial court does retain jurisdiction in the case after a petition-in-error has been filed in [the Supreme Court].

* * ⅝ sj? ⅜: ⅝!

(2) To grant or modify orders in regard to custody....

* * * ⅜ * *

(5) In matrimonial litigation, to ... issue orders affecting the custody of children ... pending the appeal.

* * * ⅜ * *

(7) To take action with respect to any issue collateral to a pending appeal." (Emphasis supplied.)

.Ancillary jurisdiction means the trial court’s responsibility to entertain requests for relief to be effective only for the duration of an appellate contest. Tisdale v. Wheeler Bros. Grain Co. Inc., Okl., 599 P.2d 1104, 1107 (1979). For an explanation of the trial court's ancillary jurisdiction in the context of a matrimonial dispute, see Jones v. Jones, Okl., 612 P.2d 266, 267-268 (1980); Blair v. District Ct. of Okl. Cty., Okl., 594 P.2d 367, 369 (1979); Cochran v. Rambo, Okl., 484 P.2d 500, 501 (1971).

. For an explanation of the trial court's mid-appeal power over issues collateral to the appeal, see Enyart v. Comfort, Okl., 591 P.2d 709, 710 (1979); Herbert, supra note 9 , 117 P. at 211 .

. For the evidentiary elements of a "permanent change of conditions” see Gibbons v. Gibbons, Okl., 442 P.2d 482, 485 (1968), where the court states "... [T|he burden of proof is upon the parent asking that custody be changed [to show] ... that, since the making of the order sought to be modified, there has been a permanent, substantial and material change of conditions...." (Emphasis supplied.) Gibbons at 485 .

. Hartshorn v. Hartshorn, 67 Okl. 43 , 155 P. 508, 509 (1916); Kostachek v. Kostachek, 40 Okl. 744 , 124 P. 761, 762 (1912).