Appendix — Quenzer v. Quenzer

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APPENDIX A

Fred A. QUENZER, Appellant

(Defendant),

Vv.

Appellee (Plaintiff).

No. 5680.

Supreme Court of Wyoming.

Oct. 29, 1982.

Rehearing Denied Nov. 17, 1982.

Donald J. Sullivan, Cheyenne, for appellant.

W.H.C. Venable, Jackson, and Lea Jacobs, Jackson,

for appellee.

2a

Before ROSE, C. J., and RAPER, THOMAS,

ROONEY and BROWN, JJ.

THOMAS, Justice.

The task confronting our court in this case is that of

reconciling, in the context of the power to enter a judg-

ment modifying a child-custody decree, the laws of the

State of Texas, the State of Wyoming, and the United

States of America. The question of custody of the parties’

daughter is before the courts for the fourth time in seven

years with each proceeding except this one being instituted

by the father. A district court in Texas entered an Order

of Modification in Suit Affecting Parent-Child Relation-

ship, modifying the child-custody provisions of an Order

entered in a circuit court of the State of Oregon essentially

by awarding custody of the child to the father. The circuit

court in Oregon had entered a judgment essentially con-

firming the child-custody provisions, but modifying the

visitation provisions, of a Decree of Divorce which had

been entered by the Court of Domestic Relations in Texas,

and which had awarded primary custody of the child to

the mother. Thereafter, the district court in Wyoming

entered its Order modifying the Texas modification order

by restoring primary custody to the mother. The district

court in Wyoming, while denigrating the authority of the

Texas court to enter a modification order, essentially

relied upon its own authority to modify the provisions

relating to the custody of the child based upon a change

in circumstances. This appeal is by the father from the

Order entered by the district court in Wyoming, which

not only modified the custody provisions of the order

3a

entered by the Texas district court, but also imposed per-

sonal judgments upon the father. Having satisfied our-

selves of the jurisdiction of the district court in Wyoming

to enter its Order, we shall affirm the district court.

The appellant, Fred August Quenzer, Jr., and the

appellee, Nola Kathleen Quenzer (now Sharrard), were

divorced in Texas in 1975. Primary custody of the parties’

daughter was awarded to the mother pursuant to the

Decree of Divorce which followed the provisions of a

Property Settlement Agreement previously entered into by

the parties. Not long after the divorce the mother re-

moved herself from Texas with the result that the father

could not exercise weekend visitation rights as provided

for in the Decree of Divorce. The response of the father

was to refuse to return the child after a visit in Texas in

June of 1976, and the mother had to return to Texas and

prosecute a habeas corpus proceeding to secure the

daughter’s return to her custody. She was successful in

that endeavor.

In August of 1977 the father petitioned the circuit court

in Oregon to enforce the visitation provisions of the Texas

decree in accordance with Oregon's adoption of the Uni-

form Child Custody Jurisdiction Act. A cross-petition by

the mother sought modification of the Texas decree and

also arrearages in child and spousal support payments,

and an increase in the amount of monthly child support.

Other relief also was requested. The father then filed a

motion for a change in custody of the daughter. In so

doing the father conceded that the Texas court did not

have continuing jurisdiction to determine custody issues,

Essentially the Oregon decree continued custody in the

mother; held the mother in contempt for failing to com-

4a

ply with the visitation provisions of the Texas decree;

modified the visitation provisions of the Texas decree so

as to require the father to post a $1000 bond to guarantee

the return of the daughter at the conclusion of court-

ordered visitation and changing the times and duration

of the father’s visitation privileges; granted judgment for

arrearages in child and spousal support agains: the father;

found the father in contempt for willful failure to comply

with the child and spousal support provisions of the de-

cree; and denied the mother’s motions for increased child

support and payment of attorneys fees and costs. Al-

though appealed, that judgment was affirmed by the

Oregon Court of Appeals.

Following the entry of the order in the circuit court

in Oregon, the mother moved to Eugene, Oregon, and

then spent the summer of 1979 traveling in Hawaii, stay-

ing there with friends. In August of 1979 the mother mar-

ried her present husband and the mother, daughter and the

stepfather moved to Dillingham, Alaska, where they re-

mained until January of 1980. From Dillingham they

moved to a smaller native village of Aleknagnik, where

they remained until June of 1980. In June of 1980 the

daughter was sent to visit in Texas. The father was en-

titled to custody for a six-week period starting on the

second Sunday of June of each year. During the period

of this visit the mother and her husband moved from

Alaska to Teton County, Wyoming, where they intended

to establish a. permanent residence. On July 8, 1980,

which was less than a week before the scheduled visita-

tion in Texas was to end, the father filed a motion in the

Texas district court, seeking a modification in custody of

the child. Process was served upon the mother in Eugene,

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Oregon, wher she was visiting prior to returning to

Wyoming.

Thereafter the mother instituted a separate habeas cor-

pus proceeding in the Texas court seeking enforcement

of the Oregon decree returning the child to her custody.

The return to her custody was ordered by the Texas court,

and on August 16, 1980, the mother and daughter left

Texas, and since that time they have resided in Wyoming.

The order formalizing the judgment of the court was

entered on October 8, 1980. In the meantime the modifi-

cation proceeding had been held in abeyance pending a

determination of the status of the mother, who had at-

tempted to appear specially. The Texas court, by the same

judge who had heard the habeas corpus proceeding, en-

tered an order denying the mother’s special appearance

and ordering the case to proceed to trial on the merits.

Thereafter, in January of 1981, trial was held with respect

to the proceeding seeking modification of custody, On

January 12, 1981, an Order of Modification in Suit Af-

fecting Parent-Child Relationship was entered in Texas in

which the court held that custody should be given to the

father with visitation rights to the mother. January 26,

1981, was specified as the date for transferring possession

of the child, and the Texas court did enter findings that

it had jurisdiction and that the mother had not been a con-

tinuous domiciliary or resident of any state for six months

preceding the filing of this action. It further found that no

other court had or has continuing jurisdiction of the suit

or of the daughter and that it had jurisdiction of the child

because it was the most convenient forum to determine

the best interest of the child.

The proceeding in Wyoming was commenced on Febru-

ary 23, 1981. The Order in the Wyoming proceeding was

6a

signed on February 22, 1982, and entered on March 2,

1982. The Wyoming court found that it had jurisdiction

under the Wyoming version of the Uniform Child Cus-

tody Jurisdiction Act; that the mother was the proper

person to have custody of the child; and that the circum-

stances before the court showed that any orders of any

court in the past should be modified, because of a change

in circumstances, to give the mother custody of the child.

While critical of the Texas proceeding, the Wyoming

district court premised its authority upon the existence

of jurisdiction pursuant to Wyoming statute, and it did

proceed to modify the Texas modification order by restor-

ing permanent custody to the mother; denying visitation

rights in the father “at the present time unless substantial

safeguards are erected in that regard”; requiring the pay-

ment of past due child support and past due spousal sup-

port; and ordering that the father should pay for attorneys

fees and costs in connection with litigation of the matter.

The father has appealed from this order.

The father, in his brief, states the issues in this appeal

as follows:

“1, Whether the trial court erred in exercising juris-

diction in the child custody modification proceeding.

“2. Whether the trial court erred in denying full

faith and credit to the existing Texas custody decree.

“3. Whether the trial court erred in exercising in

personam jurisdiction over Appellant.

“4, Whether the trial court denied Appellant due

process of law and abused its discretion.”

No separate statement of the issues is made on the part of

the mother, who contended herself with addressing the

issues as presented by the appellant.

Ta

We shall proceed to deal initially with the

issue asserted by the father. The father urges in

of his position the requirements of the Full Faith and

Credit Clause of the Constitution of the United States of

America. The Constitution provides in Art. IV, § 1, as

follows:

“Full Faith and Credit shall be given in each State to

the public Acts, Records, and judicial Proceedings

of every other State. And Congress may by general

Laws prescribe the Manner in which such Acts,

Cases from the Supreme Court of the United States, how-

ever, have taught that the finality of a custody determina-

tion under the Full Faith and Credit Clause depends on

whether the court originally making the custody deter-

mination retained the power under its own laws subse-

quently to modify its original order. In People of State of

New York ex rel. Halvey v. Halvey, 330 U.S. 610, 614,

67 S.Ct. 903, 905, 91 L.Ed. 1133 (1947), the court

stated:

“So far as the Full Faith and Credit Clause is con-

cerned, what Florida [the original divorce jurisdic-

tion] could do in modifying the decree, New York

{the forum state] may do. * * * [T]he State of the

forum has at least as much leeway to disregard the

judgment, to qualify it, or to depart from it as does

the State where it was rendered.”

This holding has been reiterated in two subsequent child-

custody decisions. Kovacs v. Brewer, 356 U.S. 604, 78

S.Ct. 963, 2 L.Ed.2d 1008 (1958); Ford v. Ford, 371

8a

US. 187, 83.8,Ct. 273, 9 L.Ed.2d 240 (1962). See also

Linch v. Harden, 26 Wyo. 47, 176 P. 156 (1918).

The holding of these cases is that if res judicicata

does not act as a bar to the modification of a custody

decree under the law of the state exercising original juris-

diction, then the forum state is not precluded from exer-

cising its own jurisdiction to modify the provisions of the

decree relating to child custody. In the instant case, Texas,

by statute and judicial interpretation, allows the modifica-

tion of a custody decree upon a showing of a substantial

change in circumstances and that the modification will be

in the best interest of the child. Tex. Fam. Code Ann.,

tit. 2, § 14.08 (Vernon 1975); Perry v. Ponder, Tex. Civ.

App., 604 S.W.2d 306 (1980). Under the rule pro-

nounced in People of State of New York ex rel. Halvey,

supra, it follows that upon such a showing Wyoming can

exercise its own jurisdiction to modify the custody deter-

mination made by the court in Texas.

The father argues earnestly, however, that the Parental

Kidnaping Prevention Act of 1980, Pub.L. 96-611, 94

Stat. 3569 (1980), substantially changes the rule an-

nounced in the cases cited above, and forecloses the

Wyoming court from modifying the modification decree

entered by the Texas court. As codified at 28 U.S.C.A.

§ 1738A, the pertinent provisions of this Act, found in

§ 8(a), are attached as Appendix A to this opinion.

This legislation, if applicable, must be afforded primary

consideration under the Supremacy Clauses of our federal

and state constitutions. Constitution of the United States,

Art. VI, Cl. 2; Constitution of the State of Wyoming, Art.

1, § 37. By this statute Congress has provided for the

effect to be given to the judicial proceedings in the state.

9a

originally exercising jurisdiction, and thus has defined

what full faith and credit requires in such instances.’

Any child-custody determination made consistently

with the provisions of the Parental Kidnaping Prevention

Act is required to be enforced according to its terms by

the courts of every other state (28 U.S.C.A. § 1738A),

and the authorities of another state are not permitted to

modify except as provided in subsection (f) of 28 U.S.

C.A. § 1738A such a child-custody determination. Sub-

section (f), which is referred to, provides as follows:

“(f) A court of a State may modify a determination

of the custody of the same child made by a court of

another state, if—

“(1) it has jurisdiction to make a child custody de-

termination; and

“(2) the court of the other State no longer has juris-

diction, or it has declined to exercise such jurisdic-

tion to modify such determination.”

The two-pronged test which must be met is: (1) Wyo-

ming must have jurisdiction under its own laws to make

a child-custody determination; and (2) Texas must no

longer have jurisdiction or must have declined to exer-

cise jurisdiction. Pierce v. Pierce, Mont., 640 P.2d 899

1. It would appear that this legislation was intended to supple-

ment existing state legislation such as the Uniform Child Custody

Jurisdiction Act to promote interstate judicial cooperation and com-

munication, facilitate the enforcement of custody and visitation de-

crees of sister states, discourage interstate controversies over child

custody, prevent jurisdictional competition and conflicts between state

courts, and to deter parental kidnapping and forum shopping. See

§7(c), Pub. L, 96-611, 94 Stat. 3569 (1980). See also comment,

The Uniform Child Custody Jurisdiction Act And Parental Ki -

ping Prevention Act: Dual Response to Interstate Child © y

Problems, 39 Wash. & Lee L. Rev. 149 (1982).

10a

(1982); State ex rel. Valles v. Brown, 97 N.M. 327, 639

P.2d 1181 (1981); Leslie L.F. v. Constance F., 110

Misc. 2d 86, 441 N.Y.S.2d 911 (1981).

There is, however, a threshold test which must be ap-

plied before the two-part test must be met. The modifica-

ticn order in Texas must have been made consistently

with the provisions of the Parental Kidnaping Prevention

Act. Subsection (c) of the Parental Kidnaping Prevention

Act provides as follows:

“(c) A child custody determination made by a court

of a State is consistent with the provisions of this

section only if—

“(1) such court has jurisdiction under the law of

such State; and

“(2) one of the following conditions is met:

“(A) such State (i) is the home State of the child

on the date of the commencement of the proceeding,

or (ii) had been the child’s home State within six

months before the date of the commencement of the

proceeding and the child is absent from such State

because of his removal or retention by a contestant

or for other reasons, and a contestant continues to

live in such State;

“(B)(i) it appears that no other State would have

jurisdiction under subparagraph (A), and (ii) it is

in the best interest of the child that a court of such

State assume jurisdiction because (I) the child and

his parents, or the child and at least one contestant,

have a significant connection with such State other

than mere physical presence in such State, and (II)

there is available in such State substantial evidence

concerning the child’s present or future care, protec-

tion, training, and personal relationships;

lla

_ “(C) the child is physically t in such State and

(i) the child has been a or (ii) it is neces-

sary in an emergency to protect the child because he

has been subjected to or threatened with mistreat-

ment or abuse;

“(D)(i) it appears that no other State would have

jurisdiction under subparagraph (A), (B), (C), or

(E), or another State has declined to exercise juris-

diction on the ground that the State whose jurisdic-

tion is in issue is the more appropriate forum to

determine the custody of the child, and (ii) it is in

the best interest of the child that such court assume

jurisdiction; or

“(E) The court has continuing jurisdiction pursuant

to subsection (d) of this section.”

The statutory basis for the exercise of jurisdiction by

the Texas court is Tex. Fam. Code Ann., tit. 2, § 11.045

(Vernon Cum. Supp. 1982), which provides:

“(a) A court has original jurisdiction of a suit affect-

ing the parent-child relationship, whether or not the

child is physically present in the state, only if one of

the following conditions is met:

“(1) this state:

raf is the principal residence of the child at the

time the proceeding is commenced; or

“(B) was the principal residence of the child at any

time during the six-month period before the proceed-

ing was commenced, and a parent or person acting

as a parent resides in this state at the time the pro-

ceeding is commenced; or

“(2) it is in the best interest of the child that a court

of this state assume jurisdiction because:

“(A) the child and the child’s parents or the child

and at least one contestant have a significant connec-

12a

tion with this state and there is available in this state

substantial evidence concerning the child’s present or

future care, protection, training, and personal rela-

tionships;

“(B) the child is physically present in this state and

there is a serious immediate question converning the

welfare of the child; or

“(C) it appears that ro other state would have juris-

diction under prerequisites substantially in accord-

ance with this section, or another state has declined

to exercise jurisdiction on the ground that this state

is the more appropriate forum to determine issues

concerning the child.

“(b) The physical presence in this state of the child

or of the child and one of the contestants is alone

insufficient to confer jurisdiction to the court to

make a determination under this subtitle.”

The father argues that the Texas court was exercising

jurisdiction under subsection (a)(2)(A) of this statute.

We agree that this was so, and we conclude that the initial

requirement of a child-custody determination made con-

sistently with the provisions of the Parental Kidnaping

Prevention Act is satisfied.

The Texas determination, however, was not made

consistently with the second requirement of the Parental

Kidnaping Prevention Act, in that its exercise of jurisdic-

tion did not fit any of the conditions contained in 28

U.S.C.A. § 1738A(c)(2). Obviously Texas was not the

home state of the child under subsection (A) of that

provision. The father cannot rely upon subsection (B)

of that provision because the daughter had been living in

Alaska for at least six consecutive months immediately

preceding the time she went to visit the father, and Alaska

13a

would be the home state of the child as defined in 28

U.S.C.A. § 1738A(b)(4). The Texas court therefore

could not, and it did not, find that no other state would

have jurisdiction under subparagraph (A) of 28 U.S.C.A.

§ 1738A(c)(2)(A). Subsections (C), (D), and (E) of

the title similarly are not appiicable, and we must con-

clude that the jurisdiction of the district court in Wyoming

was not foreclosed by the provisions of the Parental Kid-

naping Prevention Act because the modification order

entered in the State of Texas was not a “custody deter-

mination made consistently with the provisions of this

section by a court of another State.”

Having concluded thai neither the Full Faith and Credit

Clause nor the provisions of the Parental Kidnaping Pre-

vention Act foreclosed the exercise of jurisdiction by the

district court in Wyoming, we still must consider whether

the exercise of that jurisdiction was precluded under some

provision of Wyoming law. Our conclusion with respect to

this proposition will also dispose of the first issue urged

by the father in his appeal. Section 20-5-104, W.S. 1977,

is the provision governing the jurisdiction of Wyoming

courts in child-custody proceedings, and it provides as

follows:

“(a) A court of this state competent to decide child

custody matters has jurisdiction to make a child cus-

tody determination by initial decree or modification

decree if:

“(i) This state is the home state of the child at the

time of commencement of the proceeding, or was the

child’s home state within six (6) months before com-

mencement of the proceeding and the child is absent

from the state because of his removal or retention

by a person claiming his custody or for other reasons,

a Onli

4 V ~

14a

a parent or person acting as parent continues to

in this state;

“(ii) It is the best interest of the child that a court

cf this state assume jurisdiction because the child

his parents, or the child and at least one (1)

testant, have a significant connection with the

state and there is available in this state substantial

evidence concerning the child’s present or future

care, protection, training and personal relationships;

cy to protect the child because he has been sub-

to or threatened with mistreatment or abuse

or is otherwise neglected or dependent; or

“(iv) It appears that no other state would have juris-

diction under prerequisites substantially in accord-

ance with paragraphs [subdivisions] (i), (ii) or (iii)

of this subsection, or another state has declined to

exercise jurisdiction on the ground that this state is

the more appropriate forum to determine the custody

of the child and it is in the best interest of the child

that this court assume jurisdiction.

“(b) Except under paragraphs [subdivisions] (a)

(iii) and (iv) of this section, physical presence in

this state of the child or of the child and one (1) of

the contestants is not alone sufficient to confer juris-

diction on a court of this state to make a child cus-

tody determination.

“(c) Physical presence of the child, while desirable,

is not a ‘Prerequisite for jurisdiction to determine his

Both subsections (a)(i) and (a) (ii) in this instance

justify the exercise of jurisdiction by the courts of the

State of Wyoming. In § 20-5-103(a)(v), W.S. 1977,

“Home state” is defined as follows:

15a

‘anh Gaia, ata amen aes

with any of the persons mentioned. Periods of tem-

porary absence of any of the names persons are

counted as part of the six (6) month or other period;

*s*# &”

The record is clear that the daughter had resided with

cencement of the Wyoming proceeding, which was more

than six months. It is equally apparent that there did

exist in this instance a significant connection with the

State of Woming, and that there was available in this

state substantial evidence concerning the child’s present

or future care, protection, training and personal rela-

tionships. Friends, neighbors, school personnel, and a

professional psychologist were all present to assist the

court in making determinations with respect to the best

interest of the child. We note by contrast that the testi-

mony in the Texas proceeding duplicated some of this

testimony, and that the Texas witnesses appeared pri-

marily as character witnesses for the father and his

second wife. Any balanced comparison of these factors

results in a clear preference for the State of Wyoming as

the appropriate forum. The district court made its de-

termination, after weighing the factors identified in State

ex rel. Klopotek v. District Court of Sheridan County,

Wyo., 621 P.2d 223, (1980), that it was in the best

interest of the child that it exercise its jurisdiction. The

evidence present in the record sustains this determination,

16a

and in the absence of some other inhibiting factor or pro-

hibition the district court had jurisdiction over this mat-

tec under Wyoming law.

The father, however, points to the provisions of § 20-

5-107(a), W.S. 1977, and urges that this section pro-

hibits the exercise of jurisdiction in Wyoming. Section 20-

5-107(a), W.S. 1977, provides:

“(a) A court of this state shall not exercise its

jurisdiction under this act if at the time of filing the

petition a proceeding concerning the custody of the

Geka yerbdcton ding in a court of another state

ction onan Al in conformity

cia te this R. unless the i cm stayed by the

court of the other state because state is a more

appropriate forum or for other reasons.”

Again the record is clear that when this proceeding was

commenced in the Wyoming district court the proceedings

in the courts of Texas had been concluded, and become

final there according to local law. Since there was no

proceeding pending in Texas, § 20-5-107(a) did not in-

terfere with the exercise of jurisdiction by the district

court in Wyoming. We note in this regard that the

father apparently has abandoned his claim that the dis-

trict court abused its discretion by failing to decline

jurisdiction as an inconvenient forum in favor of Texas

under § 20-5-108, W.S. 1977.

Relying upon still another contention, the father argues

that the district court committed error in asserting and

exercising jurisdiction to determine child custody in the

light of §§ 20-5-114 and 20-5-115(a), W.S. 1977. The

provisions of those statutes read as follows:

17a

Ҥ 20-5-114. Recognition and enforcement of initial

or modification decree made by court of another

state,

“The courts of this state shall recognize and en-

force an initial or modification decree of a court

of another state which had assumed jurisdiction un-

der statutory provisions substantially in accordance

with this act, or which was made under factual cir-

cumstances meeting the jurisdictional standards of

the act, so long as this decree has not been modified

in accordance with jurisdictional standards substan-

tially similar to those of this act.”

Ҥ 20-5-115. Modifying custody decree made by

court of another state.

“(a) If a court of another state has made a custody

decree a court of this state shall not modify that de-

cree unless it appears that the court which rendered

the decree does not now have jurisdiction under jur-

isdictional eg substantially in accordance

with this act or has declined to assume jurisdiction

to modify the decree, and the court of this state has

jurisdiction.”

The mother meets these contentions by asserting that

the district court correctly refused to recognize and en-

force the Texas order because the statutory provisions in

Texas are not substantially in accordance with the Uni-

form Child Custody Jurisdiction Act, and she asserts that

the factual circumstances were such that the jurisdic-

tional standards of the Uniform Act were not met in

Texas. See Allison v. Superior Court of County of Los

Angeles, 99 Cal. App. 3d 993, 160 Cal. Rptr. 309

(1979). She points out that, while tit. 2, § 11.045(a) (2)

(A), Tex. Fam. Code Ann. (Vernon 1975), facially is

similar to § 20-5-104(a) (ii), W.S. 1977, the State of

18a

Texas has no provision similar to § 20-5-109(b), W.S.

1977. This latter provision provides as follows:

“(b) Unless required in the interest of the child and

subject to W.S. 20-5-115(a) the court shall not

exercise its jurisdiction to modify a custody decree

of another state if the petitioner without consent

of the person entitled to custody has improperly re-

moved the child from the physical custody of the

person entitled to custody or has improperly retained

the child after a visit or other temporary relinquish-

ment of physical custody. If the petitioner has vio-

lated any other provision of a custody decree of

another state the court in its discretion and subject

a 20-5-115(a) may decline to exercise juris-

ction.”

The record before us discloses that while the father filed

his action for modification in Texas during the period

that the daughter was visiting him pursuant to the provi-

sions of the Oregon decree, his retention of custody be-

yond the time provided by the decree was wrongful and

in derogation of the mother’s rights. We agree with the

mother that State ex rel. Klopotek v. District Court of

Sheridan County, supra, teaches that a Wyoming court

under these circumstances would not be permitted to

exercise its jurisdiction to modify a custody decree.

It would appear from the circumstances that the policy

of the State of Texas differs. Consequently, if the issue

in this case were confined to the enforcement of the Texas

order it well might be that the doctrine of res judicata,

combined with the provisions of our Wyoming law and

the Parental Kidnapping Prevention Act, would require

the recognition and enforcement of the Texas decree.

Contrary to the finding of the Wyoming district court,

19a

the issue of the mother’s general appearance

probably was governed by the principle of res

Still the availability of the jurisdiction of the

court to modify the provisions of the State order

foreclosed. Unless the prohibition contained in §

115(a), W.S. 1977, is applicable, the district court

Wyoming had the power to act and enter its own order

modifying the custody provisions upon a sufficient show-

ing of a change in circumstances to warrant a different

decree. Salmeri v. Salmeri, Wyo., 554 P.2d 1244 (1976);

Tanner v. Tanner, Wyo., 482 P.2d 443 (1971); and

Leitner v. Lonabaugh, Wyo., 402 P.2d 713 (1965).

We conclude that it is the duty of the Wyoming

court to determine the applicability of § 20-5-115(a),

W.S. 1977, i.e., to determine whether the Texas court at

the time the jurisdiction of the Wyoming court was exer-

cised had jurisdiction under jurisdictional prerequisites

substantially in accordance with the Uniform Child Cus-

tody Jurisdiction Act or had declined to assume jurisdic-

tion to modify the decree, Leslie L.F. v. Constance F.,

supra. This determination, which must be made by the

Wyoming court, is to be made not at the commencement

of the Wyoming action, but rather at the time of the

hearing on the matter in light of the evidence presented.

In re Marriage of Hobson, 110 Cal. App. 3d 884, 168

Cal. Rptr. 345 (1980). Other courts which have con-

strued this Uniform Child Custody Jurisdiction Act gen-

erally have applied a two-stage test in determining whether

the local court had jurisdiction to modify a foreign cus-

tody determination. First the court must consider whether

the court whose decree is sought to be modified no longer

has jurisdiction under standards such as those set forth

in § 20-5-104, W.S. 1977, and secondly it may consider

th

sh

20a

whether the court whose decree is sought to be modified

has declined jurisdiction to modify its prior judgment.

If either of these tests is met, then the forum state must

determine whether it has jurisdiction under its own laws.

In re Marriage of Hobson, supra; In re Marriage of Mintle,

Towa, 294 N.W.2d 564 (1980); Application of Pierce,

Mont., 601 P.2d 1179 (1979); Leslie L.F. v. Constance

F., supra; and Dragoo v. Dragoo, 99 Wis. 2d 42, 298

N.W.2d 231 (1980).

On the date that the Wyoming court held its hear-

ing the Texas court no longer had jurisdiction under

standards which substantially comply with the Uniform

Child Custody Jurisdiction Act. This test having becn

met, the Wyoming court was not foreclosed from exer-

cising jurisdiction by the provisions of § 20-5-115(a),

W.S. 1977. We justify this holding first by alluding to

one of the general purposes of the Uniform Child Custody

Jurisdiction Act set forth in § 20-5-102, W.S. 1977, as

follows:

“(a) The general purposes of this act are:

* *

“(iii) To assure that litigation concerning the cus-

tody of a child take place ordinarily in the state with

which the child and his family have the closest con-

nection and where significant evidence concerning

his care, protection, training and personal relation-

ships is most readily available, and that courts of

this state decline the exercise of jurisdiction when

the child and his family have a closer connection

with another state;”

We find in this statement of policy an explicit recognition

that the paramount consideration of the best interest of

“* * * As a general proposition the state in which

there is the best opportunity to investigate the facts

is most qualified to take jurisdiction.” Bodenheimer,

The Uniform Child Custody Jurisdiction Act: A

Legislative Remedy for Children Caught in the Con-

flict of Laws, 22 Vand. L. Rev. 1207, 1221 (1969).

In the Commissioner’s Note following § 3 of the Uni-

form Child Custody Jurisdiction Act, it is stated that

there “must be maximum rather than minimum contacts

with the state.” 9 U.L.A., Child Custody Jurisdiction Act,

§ 3, p. 124 (1979). Courts which have interpreted this

provision similarly have held that by requiring optimal

access to the relevant evidence the best interest of the

child will be served. In re Marriage of Weinstein, 87 Tl.

App. 2d 101, 42 Ill. Dec. 243, 408 N.E.2d 952 (1980);

Slidell v. Valentine, lowa, 298 N.W.2d 599 (1980); and

Leslie L.F. v. Constance F., supra. See alse Moran, The

Uniform Child Custody Jurisdiction Act: An Analysis of

Its History, A Prediction of Its Future, 84 W. Va. L. Rev.

135, 146-147 (1981).

At the time that Wyoming exercised its jurisdiction in

this matter it was the “home state” under the Uniform

Child Custody Jurisdiction Act and § 20-5-104(a) (i),

W.S. 1977. The potential basis for the assertion of juris-

diction in Texas is the Texas counterpart of § 20-5-104

(a) (ii), W.S. 1977. At the pertinent date the state which

had the met significant connections with the child and

22a

her mother was Wyoming. In February of 1982 the

daughter had been present in Wyoming nearly eighteen

months. She was attending local schools and receiving

weekly counseling in Jackson, Wyoming, from a profes-

sional psychologist. Evidence of the mother’s parental fit-

ness and her relationship with the daughter was most

accessible in Wyoming. Most importantly, however, the

child’s presence in this state gave the district court the

best opportunity to gather evidence concerning the daug-

ter’s emotional and personal development, as well as fur- |

nishing to it the opportunity for the child to testify directly

with respect to her early. allegations in the Texas habeas

corpus proceeding of drug use and mistreatment at the

hands of her mother. She had earlier recanted that testi-

mony by a letter to the Texas judge, and the Wyoming

court had the opportunity to evaluate personally with the

daughter the two versions of her prior testimony. The

evidence available in Wyoming was relevant and sub-

stantial with respect to the issue of the best interest of

the child. Under these criteria the Wyoming court proper-

ly exercised jurisdiction in the matter and entered its

decree modifying the custody provisions of the Texas

decree.

The third issue presented by the father is his argument

that he entered and maintained in the district court in

Teton County, Wyoming, a special appearance to contest

both subject-matter jurisdiction and jurisdiction over his

person. Pointing to his continuing status as a resident of

Texas, he urges that service of process by the sheriff's

office in Harris County, Texas, was not sufficient to invest

the Wyoming court with the power to enter judgments

terminating his visitation privileges indefinitely or for

money amounts due for unpaid support payments, This

23a

argument also extends to the award in the judgment of

eae tip aghast recat gin eed) oP ageless ne

that there is no adequate nexus, either in the record or

IF ais ‘he halite Har auneiide Gk We Porictinms jurindictinn

over him. Stated succinctly, his argument is that he en-

tered only a special appearance in Wyoming to contest

jurisdiction and he did not waive that appearance by any

general appearance in the case.

The district court in an order entered on October

8, 1981, which dealt with various pending motions,

made the following finding:

“1. Defendant's continued requests for affirmative

relief, most recently in the motions for “Vacation of

Order to Amend and for Default’, continue [sic] an

abandonment of special appearance and change his

status to that of a general appearance.”

We affirm the finding of the district court in this regard.

In the first pleadings filed in the district court in Wyoming

the father invoked the power of the court by seeking as

an alternative to dismissal for want of jurisdiction affirma-

tive action by the Wyoming district court either to enforce

the earlier Texas judgment or to recognize the Texas

court as a more convenient forum. A special appearance

is one limited to challenging the jurisdiction of the court.

By invoking the power of the district court to grant af-

firmative relief, the appellant waived his special appear-

ance and made a general appearance. Public Service Com-

mission of Wyoming v. Russell, 51 Wyo. 463, 68 P.2d

597 (1937); State ex rel. Valles v. Brown, supra; and

Wagoner v. Saunier, Okl. 627 P.2d 428 (1981). In addi-

tion to the matters mentioned, the appellant, as alluded

to by the district court in its finding, subsequently filed a

24a

motion in which he sought vacation of the district court’s

allowance of the mother’s motion to amend and in which

he requested the entry of a default judgment against him-

self so that he could promptly appeal. Furthermore, this

court is cognizant of the fact that in July of 1981 the

father sought affirmative relief in Wyoming courts by the

filing of a Petition for Writ of Habeas Corpus and Writ

of Prohibition in this court.

The father is not assisted by his later Notice of Non-

participation because once a person subjects himself to

the jurisdiction of the court by the entry of a general

appearance, he cannot withdraw his earlier appearance

and escape the jurisdiction of the court. Weaver Construc-

tion Company v. District Court in and for El Paso County,

4th Judicial District, 190 Colo. 227, 545 P.2d 1042 (1976).

We hold that the district court properly exercised personal

jurisdiction over the father.

Finally, although embellished with the claim of a depri-

vation of due process of law, the last argument of the

father relates to the sufficiency of the evidence to justify

the finding by the district court of a substantial change

in circumstances, The father argues that this record does

not contain evidence to support the decision of the dis-

trict court, and because of the district court’s order that

the hearing held on February i1, 1982, not be reported,

this court cannot identify evidence sufficient to support

the district court’s decision. He also urges the proposition

that the brief period between the date of the modification

order in Texas and the beginning of the Wyoming pro-

ceedings negates the possibility that a change of circum-

stances occurred in the interim.

25a

Once vested with jurisdiction over the cause, it is

the duty of the court to hear evidence to determine whether

a substantial material change in circumstances has oc-

curred so that the welfare of the child will be best served

by a change in custody. Blackwell v. Pickett, Wyo., 490

P.2d 347 (1971); Elm v. Key, Wyo., 480 P.2d 104

(1971); Leitner v. Lonabaugh, supra; and Linch v. Har-

den, supra. Although the brief period of time between

the entry of the order sought to be modified and the in-

stitution of new proceedings may indicate that circum-

stances have not changed, we cannot as a matter of law

hold that the movant, who bears the burden of proof,

could not present such sufficient evidence, Blackwell v.

Pickett, supra; Tanner v. Tanner, supra; and Laughton

v. Laughton, 71 Wyo. 506, 259 P.2d 1093, 43 A.L.R.2d

351 (1953). We note, in this regard, that although the

Texas court had restored custody to the mother in August

of 1981, its order was not entered until some five months

later. The record presuades us that many events were

occurring after the restoration of custody to the mother,

some of which the Texas court took into account, but

some of which the district court in Wyoming reasonably

would be required to entertain in considering a change

in circumstances.

We are not persuaded that the trial court committed

an abuse of its discretion in entering the order

appealed from after the unreported hearing. This is not

a case in which the record is devoid of any evidence or

findings by the trial court such as McVay v. McVay, 44

Ohio App. 2d 370, 73 Ohio Op. 2d 415, 338 N.E.2d

772 (1974), which is relied upon by the father. The

district court in this instance made detailed and explicit

26a

findings concerning the changes in the daughter’s circum-

stances. In addition, the record contains exhibits entered

into the record at the unreported hearing which themselves

contain evidence, including the depositions of the daughter

and the psychologist, both of which support the findings

made by the district court. The evidence is sufficient to

support a conclusion that the mother has established a

stable home with her new husband, and this has greatly

aided the daughter’s own emotional stability and maturity.

The deposition of the psychologist details the advances

the daughter has made since treatment was obtained. The

daughter is happy and mainifesting significant improve-

ment in her school work and social development under

the mother’s care and supervision. She has established a

strong parent-child relationship with her stepfather. Other

improvements in the daughter and the mother’s circum-

stances are detailed in the record. The record in this case

is adequate to support the action of the district court.

It does appear that the father’s position fails to take

into account the prior decisions of this court with respect

to modification orders in child-custody proceedings. It is

our rule that the decision of the district court will not

be disturbed on appeal unless there is an abuse of dis-

cretion or the violation of some legal principle. Gill v.

Gill, Wyo., 363 P.2d 86 (1961); and Stirrett v. Stirrett,

35 Wyo, 206, 248 P. 1 (1926). Since we conclude that

there is present here neither an abuse of discretion nor

the violation of any legal principle, the judgment of the

district court must be sustained.

The order of the trial court hereby is affirmed on the

basis of the conclusions reached in the foregoing opinion.

27a

APPENDIX A

PARENTAL KIDNAPPING PREVENTION

ACT OF 1980

PUB. L. 96-611, 94 STAT. 3569, AS

CODIFIED IN 28 U.S.C.A. § 1738A

“(a) The appropriate authorities of every State shall

enforce according to its terms, and shall not modify

except as provided in subsection (f) of this section,

any child custody determination made consistently

with the provisions of this section by a court of

another State.

“(b) As used in this section, the term—

“(1) ‘child’ means a person under the age of eigh-

teen;

“(2) ‘contestant’ means a person, including a parent,

who claims a right to custody or visitation of a child;

“(3) ‘custody determination’ means a judgment, de-

cree, or other order of a court providing for the custody

or visitation of a child, and includes permanent and

a en ee

“(4) ‘home State’ means the State in which, immedi-

ately preceding the time involved, the child lived

with his parents, a parent, or a person acting as

parent, for at least six consecutive months, and in

the case of a child less than six months old, the

State in which the child lived from birth with any

of such persons. Periods of temporary absence of

any of such persons are counted as part of the six-

month or other period;

“(5) ‘modification’ and ‘modify’ refer to a custody

determination which modifies, replaces, supersedes,

Ce Se

va .

28a

ste hb ans ou gp. gaa 0, a pir cat

determination concerning the

prs gi a

“(6) ‘person acting as a parent’ means a person,

other than a parent, who has physical custody of a

child and who has either been awarded custody by

a court or claims a right to custody;

“(7) ‘physical custody’ means actual possession and

control of a child; and

“(8) ‘State’ means a State of the United States, the

District of Columbia, the Commonwealth of Puerto

Rico, or a territory or possession of the United States.

“(c) A child custody determination made by a court

of a State is consistent with the provisions of this

section only if—

“(1) such court has jurisdiction under the law of

such State; and

“(2) one of the following conditions is met:

“(A) such State (i) is the home State of the child

on the date of the comencement of the proceeding,

or (ii) had been the child’s home State within six

months before the date of the commencement of the

proceeding and the child is absent from such State

because of his removal or retention by a contestant

or for other reasons, and a contestant continues to

live in such State;

“(B)(i) it appears that no other State would have

jurisdiction under subparagraph (A), and (ii) it is

in the best interest of the child that a court of such

State assume jurisdiction because (I) the child and

his parents, or the child and at least one contestant,

have a significant connection with such State other

than mere physical presence in such State, and (II)

there is available in such State substantial evidence

29a

concerning the child’s present or future care, protec-

tion, training, and personal relationships;

“(C) the child is physically present in such State

and (i) the child has been abandoned, or (ii) it is

necessary in an emergency to protect the child be-

cause he has been subjected to or threatened with

mistreatment or abuse;

“(D)(i) it appears that no other State would have

jurisdiction under subparagraph (A), (B), (C), or

(E), or another State has declined to exercise juris-

diction on the ground that the State whose jurisdic-

tion is in issue is the more appropriate forum to

determine the custody of the child, and (ii) it is in

the best interest of the child that such court assume

jurisdiction; or

“(E) the court has continuing jurisdiction pursuant

to subsection (d) of this section.

“(d) The jurisdiction of a court of a State which

has made a child custody determination consistently

with the provisions of this section continues as long

as the requirement of subsection (c)(1) of this sec-

tion continues to be met and such State remains the

residence of the child or of any contestant.

“(e) Before a child custody determination is made,

reasonable notice and opportunity to be heard shall

be given to the contestants, any parent whose par-

ental rights have not been previously terminated and

any person who has physical custody of a child.

“(f) A court of a State may modify a determination

of the custody of the same child made by a court of

another State, if—

“(1) it has jurisdiction to make such a child custody

determination; and

“(2) the court of the other State no longer has juris-

diction, or it has declined to exercise such jurisdic-

tion to modify such determination.

eis

cay

¥

30a

“(g) A court of a State shall not exercise jurisdiction

in any for a custody determination com-

during pendency of a proceeding in a

court of another State where such court of that other

State is exercising jurisdiction consistently with the

provisions of this section to make a custody deter-

NOTE: Legal scholars had anticipated the desirability of

legislation such as this. See Bodenheimer, the Uniform

Child Custody Jurisdiction Act: A Legislative Remedy for

Children Caught in the Conflict of Laws, 22 Vand.L.Rev.

1207, 1209-1216 (1969); Currie, Full Faith and Credit,

Chiefly to Judgments: A Role for Congress, 1964 Sup.Ct.

Rev. 89, 115-118; Moran, The Uniform Child Custody

Jurisdiction Act: An Analysis of Its History, A Prediction

of Its Future, 84 W.Va.L.Rev. 135, 138-141 (1981);

Ratner, Child Custody in a Federal System, 62 Mich.L.

Rev. 795, 798-807 (1965).

3la

APPENDIX B

IN THE SUPREME COURT

STATE OF WYOMING

October Term, A.D. 1982

NO.. 5680

FRED A. QUENZER,

Appellant (Defendant),

Vv.

NOLA KATHLEEN (QUENZER),

Appellee (Plaintiff).

ORDER DENYING PETITION FOR

REHEARING

This matter came on before the Court upon the Petition

for Rehearing filed herein on behalf of Appellant and the

Court having carefully considered the matter finds that

the issues and arguments presented in the Petition for

Rehearing were fully considered by the Court in its ori-

ginal disposition of this case; therefore it is

ORDERED that the Petition for Rehearing filed here-

in be, and the same hereby is, denied.

November 17th, 1982.

BY THE COURT:

/s/ ROBERT R. ROSE, JR.

Robert R. Rose, Jr.

Chief Justice

_ rend

32a

APPENDIX C

IN THE DISTRICT COURT OF

TETON COUNTY, WYOMING

NINTH JUDICIAL DISTRICT

CIVIL ACTION NO. 4773

NOLA KATHLEEN (QUENZER),

Plaintiff,

v.

FRED A. QUENZER,

Defendant.

(Filed March 2, 1982)

ORDER

This matter came on for hearing before the Court on

February 11, 1982. The plaintiff (mother) appeared in

person, along with the minor child, Megan Kathleen

Quenzer (child); the mother’s present husband Jerry

Sharrard; her attorneys and her witnesses. The Court had

continued the hearing in this case at the defendant

(father’s) request and neither the father nor his attorneys

appeared. This was most distressing to the Court, but

having heard the evidence adduced, it is now clear to the

Court why the father did not appear. This will become

evident upon the reading of this Order.

FINDINGS

The mother and father were divorced in Harris County,

Texas on December 22, 1975. The mother was granted

33a

- custody of the child who is now 11 years of age, having

beer, born on April 20, 1970.

The divorce decree ordered the father to pay the sum

of $300 per month child support.

_ The property settlement agreement entered into by the

father and mother was incorporated in the divorce decree

by the Texas Court and it states that the father shall,

among other things, pay al! medical, dental, psychological,

orthodontic expenses and the cost of any prescriptioa

drugs for the child when not covered by insurance.

The settlement agreement also states that the father

shall pay the mother the sum of $1,000 per month com-

mencing October 1, 1975 through and including April 1,

1987 for alimony regardless of the mother’s marital status.

The agreement also provides that the father is to pay

all sums incurred by the mother in enforcing the agree-

ment.

Since the divorce, neither the mother nor the child have

appeared in the state of Texas with the exception of the

child’s presence in that state for visitation and two special

appearances on the part of the mother. The mother had

to make these appearances to obtain custody of the child

after the father illegally refused to return the child. Both

of these were habeas corpus actions taken by the mother.

The mother and the child have resided in the state of

Wyoming in excess of six months prior to the filing of this

case with the exception of the child’s brief absence from

the state of Wyoming for visitation purposes with the

father in the state of Texas during the summer of 1980

as mentioned above.

34a

Prior to the mother moving to Wyoming she and the

child had lived in Oregon for a period of more than three

years, except for two semesters when the mother was

teaching among native Americans in Alaska.

During the time that the mother and child resided in

Oregon the defendant brought an action in Lincoln

County, Oregon for a modification of the Texas divorce

decree in which he sought custody of the child. The Ore-

gon court denied the father’s request and ordered him to

pay all past due child support in the amount of $517.92

and past due alimony in the amount of $23,265 for the

period through May 3i, 1981. That court also ordered

the father to maintain child support payments in the

amount of $300 per month and alimony payments in the

amount of $1,000 per month which were to be paid to the

Department of Human Resources, Support Management

Unit, Salem, Oregon.

Records from that agency indicate that the father has

willfully disobeyed the Oregon court Order and is in ar-

rears as of September, 1981, in the amount of $66,488.92.

No sums have been paid to the mother since September

1, 1981.

The father has made the same allegations as to the

mother’s conduct and welfare in the Oregon courts; in the

Texas courts; in this court and in the Supreme Court of

the State of Wyoming.

During the trial in Oregon, both the father and his then

wife testified that the mother was rude and vulgar. They

were given opportunities to retract that testimony and

they refused to do so. A tape recording of the incident

involved was introduced which clearly shows that both the

father and his present wife lied under oath.

35a

~ The judgment of the Circuit Court in Oregon was up-

held by the Oregon Court of Appeals on October 10,

1979.

During August of 1981, while the father was wrong-

fully keeping the child in the state of Texas after his

visitation had ended, and in violation of the Oregon

Order, the mother was forced to commence a habeas corpus

action to retain care, custody and control of the child in

accordance with tke Oregon Order.

During that hearing the father appeared and presented

evidence on the issue of whether the circumstances of the

child were such as to cause her to be in immediate danger

or threat if returned to the mother. It was during this

hearing that the child gave testimony conceived by the

father, knowing the testimony to be false. Notwithstanding

that false testimony, the Court ruled that there was no

such emergency and the child was returned to the mother

after finding the father had illegally and willfully retained

the child. The same Judge heard the habeas corpus action

as later heard the action for modification of the custody

of the child. It is noted that this Court has talked with the

child and finds her to be a lovely young lady. She appears

to be well adjusted and she is scared to death to visit with

her father because she knows he will “kidnap” her and

these are the child’s own words.

The child wants to stay with her mother and her step-

father Jerry Sharrard.

On August 15, 1981 the Harris County, Texas court

granted care, custody and control of the child to the

mother after taking testimony concerning the best interest

of the child. The Court’s Order itself recognized there

36a

was no immediate danger or threat and that the child had

been “illegally confined and retained” by the father.

While verbally ordering a return of the child on August

15, 1980, the Court delayed signing the Order until

October 8, 1980. During this time the Court appointed a

Houston attorney, Mr. David Gibson, to inquire into the

child’s circumstances. The attorney personally met with

the mother and child together and individually, verified

her school attendance, saw the child’s home and examined

the neighborhood. In late September Gibson reported to

the Judge that he was favorably impressed with all his

findings and could find no serious or immediate question

concerning the welfare of the child. Additionally the Court

requested a psychological evaluation and received a posi-

tive report from Dr. Elizabeth Hickman of Jackson.

Dr. Hickman testified in this court in the hearing to

which this Order addresses itself. In August, 1980 the

child was distraught, upset and not child-like. Dr. Hick-

man confirmed that the child had lied to the Court and

to the Judge in Texas after being compelled to do so

by the father. The lies came from the father and the

father’s now wife.

Dr. Hickman confirmed to the Court as did the child,

that the child wants to live with her mother and step-

father and it was confirmed to this Court by both Dr.

Hickman and the child and from the Court’s view of the

pictures of the premises as well as the Court taking ju-

dicial notice of the home in which the mother and step-

father now live, for the reason that the Court is familiar

with this area, that the home is adequate, the child has

her own room, there is a guest house, it is comfortable

and, in fact, one of the most beautiful places in Jackson

A

37a

Hole, Wyoming. It is located on Shadow Mountain di-

rectly across the river to the east from the Tetons and

within short walking distance of the Conrad Schwiering

home.

It was confirmed by Dr. Hickman that contrary to the

Texas Court Order the father never made himself avail-

able to her even though he was required to do so. Once

again, the father failed to abide by the Order of the Texas

Court. Quite to the contrary the mother and the child

were always available and cooperative and have been

involved with Dr. Hickman for more than one and one

half years. In fact, Dr. Hickman has seen the child on

more than 50 occasions and the transformation since the

child has not been involved with the father is miraculous.

All to the good,

In spite of all this, it is interesting to note that the

mother wants the father to visit the child, but she is afraid

of what will happen in view of the history of this matter.

The Court is also afraid of what might happen as is the

child, it being noted that the child is petrified.

There is a strong, positive relationship between the

step-father, Jerry Sharrard, and the child and in fact the

step-father is, in every emotional sense of the word, the

child’s father.

The relationship between the mother and child is open

and stable.

The Court notes that the Texas Court recognized the

Oregon modification Order in the Texas Court letter of

appointment of Gibson in the habeas corpus hearing.

Notwithstanding all of the legal proceedings that have

gone on in this case, the Court finds, without any problem

38a

whatsoever, that in spite of any and all Orders which may

even indicate to the contrary the mother is the proper

person to have custody of the child and that circumstances

presently before the Court show that any Orders of any

court in the past should be modified because of a change

in circumstance to give the mother custody of the child.

It is noted that the Petition for Modification of Custody

was filed in the Harris County Court on behalf of the father

while the father had illegal possession of the child and

the father purposely held the child in the state of Texas

in an attempt to establish jurisdiction in that state. At

the time the Texas Court considered the father’s petition

on its merits the child’s home state was in Wyoming, with

the mother, the child was attending school in the state

of Wyoming and there was no information about the

child in the state of Texas to determine the child’s best

interest. In fact, all evidence adduced by the Texas Court

from Wyoming was supportive of the mother’s position.

The transcripts reveal that no new evidence of sub-

stance was heard in Texas at the hearing of the petition

on its merits and that a substantial portion of said hear-

ing was simply an incorporation of the prior habeas corpus

action at which time the same Judge returned the child

to the mother finding no serious question of the child’s

welfare.

The Texas modification suit was not filed until after

the father knew the mother had left Alaska and was on

her way to Jackson.

At the time instant case was commenced (February,

1981) there was no action pending in any other court.

The action commenced by the father in the state of Texas

had been concluded on January 26, 1981.

39a

Instant case was filed because of the child’s fear con-

cerning her detention during the past summer in Texas,

coupled with the fear that her father would use the Texas

decree to take her away from her mother.

Instant hearing comes before this Court with the father

having appeared and although having requested a con-

tinuance and having been urged to appear by this Court,

having failed to do so and asking for general relief in

many forms, such as, enforcement of the Texas Modifica-

tion Order; for a stay in proceedings; for dismissal of

this action; continuances and orders not to remove the

child from Teton County, etcetera.

This Court has considered all prior transcripts and

custody proceedings, including that of the Texas Court,

even though it may not be required to do so.

This Court, as mentioned above, finds that there is

sufficient change in circumstances to modify custody in

the mother’s favor notwithstanding any prior proceedings.

As stated above, the illegal detention of the child by

the father has caused the child to suffer severe emotional

stress, particularly with respect to continuing litigation

regarding her custody and most specifically, including,

without being limited to, having been instructed by her

father how to insult and lie about her mother under oath

before the Courts.

The mother has had custody of the child since 1975.

The mother and the step-father, Jerry Sharrard, have pro-

vided the child with a good home; a good education, in a

good, warm loving atmosphere.

The child is receiving excellent care in Wyoming; she

has been able to recover from the psychological trauma

40a

of being subjected to continuous litigation and constant

conflict about her care and custody caused by the father.

Particularly evident is the maturation of the child and her

emotional stability since February, 1981.

It is also interesting to note that the child has made

numerous attempts to contact her father, but they have

been unsuccessful and the father has not even attempted

to contact his child since May, 1981.

If the father is allowed to visit the child without mean-

ingful safeguards, it is probable that the child would

undergo further emotional stress harming her health and

welfare.

It is aoted that the mother is a very intelligent lady

who has always let the father know where she and the

child could be located and her actions have only been in

defense of her rights and that of her child.

The plaintiff has incurred attorney fees and costs in

this matter in the sum of $17,103.77 all of which was

substantiated by expert testimony.

IT IS ORDERED, that this Court has personal and

subject matter jurisdiction to hear this case.

IT IS FURTHER ORDERED, that the state of Texas

did not have jurisdiction to hear the modification under a

statute substantially similar to Wyoming law or jurisdic-

tional standards and facts similar to Wyoming law, which

may be irrelevant in any event because the Texas action

was not pending at the time this court took jurisdiction.

IT IS FURTHER ORDERED, that the child’s home

state under standards, facts and laws substantially similaf

to Wyoming and Oregon was not Texas, but rather

Wyoming.

4la

IT IS FURTHER ORDERED, that there is sufficient

evidence in the state of Texas to determine the child’s

best interest.

IT IS FURTHER ORDERED, that this Court refuses

to recognize the Texas Modification Order as requested

by the father, as said Order was obtained as the result

of the father’s illegal confinement and detention of the

child within the state of Texas after the period of visita-

tion had ended and in violation of the Oregon Modifica-

tion Order.

This Court has jurisdiction as no other court now has

jurisdiction, nor did any court have jurisdiction at the

time this case was filed so as to cause this court to have

to consider full faith and credit under the Uniform Child’s

Jurisdiction Act or Federal Law.

IT IS FURTHER ORDERED, that the child’s circum-

stances have substantially changed since the time of the

Texas Modification Order and the best interest of the

child would be served by maintaining the child’s perman-

ent custody with the mother and the father not being per-

mitted any visitation at the present time unless substantial

safeguards are erected in that regard.

IT IS FURTHER ORDERED, that the father shall

pay to the mother the sum of $3,600 in past due child

support, plus the sum of $3,004.39 for medical expenses

of the child.

IT IS FURTHER ORDERED, that the father shall

pay $300 per month each and every month plus costs and

expense of any medical care over $10 for the child. All

payments shall be made prior to the first day of each

month to the Clerk of this Court, Ninth Judicial District,

P. O. Box 1727, Jackson, Wyoming 83001.

42a

IT IS FURTHER ORDERED, that the father shall

pay to the mother the sum of $68,088.92 in past due

spousal support plus all sums as they shall become due

pursuant to the property settlement agreement entered

into by the parties and upon Order of the Texas courts.

IT IS FURTHER ORDERED, that the father shall

pay to the mother the sum of $17,103.77 for attorney

fees and costs of litigation in this matter. Pursuant to the

property settlement agreement and § 20-5-116 W.S.

IT IS FURTHER ORDERED, that all payments due

hereunder shall be subject to 10% interest according

to law.

Dated February 22, 1982.

/s/ ROBERT B. RANCK,

Robert B. Ranck, District Judge

43a

APPENDIX D

IN THE DISTRICT COURT OF

309th JUDICIAL DISTRICT

HARRIS COUNTY, TEXAS

NO. 1,035,983-A

IN THE MATTER OF THE MARRIAGE OF

FRED AUGUST QUENZER, JR., and

NOLA KATHLEEN QUENZER

AND IN THE INTEREST OF

MEGAN KATHLEEN QUENZER, a Child

ORDER OF MODIFICATION IN SUIT

AFFECTING PARENT-CHILD RELATIONSHIP

Be it remembered that on the 12th day of January,

1981, came on to be heard the Motion to Modify in Suit

Affecting Parent-Child Relationship as filed by FRED

AUGUST QUENZER, JR., Movant herein. Movant ap-

peared in person and by his attorney, Morley H. White.

Respondent, NOLA KATHLEEN, appeared by and

through her attorney, James Gerson. The order to be

modified is entitled “Decree of Divorce” and is dated the

22nd day of December, 1975 and as later modified on

July 7, 1978. The Decree of Divorce was modified by the

Circuit Court of the State of Oregon, for the County of

Lincoln in Cause No. 38791 wherein FRED AUGUST

QUENZER was Petitioner and NOLA KATHLEEN

QUENZER, a/k/a NOLA KATHLEEN was Respondent.

Respondent filed a Special Appearance. The Court

having considered the pleadings, testimony of record, and

all other relevant matters found it had jurisdiction and

denied the Special Appearance. The Court further finds

44a

that at the time of the commencement of this suit, NOLA

KATHLEEN was not a continuous domiciliary or resi-

dent of any state for six months preceeding the filing of

this action; that MEGEN KATHLEEN QUENZER was

born on April 20, 1970 in Houston, Harris County,

Texas; that the parties, NOLA KATHLEEN and FRED

AUGUST QUENZER were granted a divorce in Houston,

Harris County, Texas on the 22nd day of December,

1975 under cause number 1,035,983 as filed in the Court

of Domestic Relations Number Two, Harris County,

Texas captioned “In the matter of the marriage of: FRED

AUGUST QUENZER, JR. and NOLA KATHLEEN

QUENZER and in the interest of MEGEN ELIZABETH

QUENZER;:” that Texas was the last matrimonial Domi-

cile of NOLA KATHLEEN and FRED AUGUST

QUENZER; that NOLA KATHLEEN has been a transi-

ent for at least two years proceeding the filing of this

cause; that no other court had or has continuing jurisdic-

tion of this suit or of the child, MEGEN KATHLEEN

QUENZER, the subject of this suit. The Court finds it

has jurisdiction of the child MEGAN KATHLEEN

QUENZER, and that this Court is the most convenient

forum to determine the best interest of the child MEGEN

KATHLEEN QUENZER.

The Court, having examined the pleadings and heard

the evidence and argument of counsel, finds that it has

jurisdiction of this cause and of all the parties. A jury was

waived, and all matters in controversy, including questions

of fact and of law, were submitted to the Court. All

persons entitled to citation were properly cited. The Court

finds that the material allegations contained in Movant’s

Motion of Modification are true and the following orders

are in the best interest of the child:

45a

Since entry of the original Order by this Court and

again after the hearing in Oregon, the circumstances of

the child have so materially and substantially changed

that retention of NOLA KATHLEEN, the present Man-

aging Conservator, would be injurious to the welfare of

MEGAN KATHLEEN QUENZER; FRED AUGUST

QUENZER, JR. should be appointed Managing Con-

servator and such appointment would be a positive im-

provement for, and in the best interest of, such child.

The Court finds that the following child is the subject

of this suit:

Name: MEGAN KATHLEEN QUENZER

Birthplace: Houston, Texas Sex: Female

Birth Date: 4/20/70

The Court further finds that at the time of filing of the

above numbered and styled cause, MEGAN KATHLEEN

QUENZER was physically present in Texas.

It is further ORDERED, ADJUDGED and DECREED

that the prior testimony of MEGAN KATHLEEN

QUENZER be and is hereby made a part of the record in

this cause.

It is ORDERED, ADJUDGED and DECREED that

NOLA KATHLEEN be removed as permanent Managing

Conservator; that FRED AUGUST QUENZER, JR. be

and is hereby appointed permanent Managing Conservator

of the child, MEGAN KATHLEEN QUENZER; and that

all prior orders for the support of such child are super-

seded by this order.

it is ORDERED, ADJUDGED and DECREED that

NOLA KATHLEEN transfer possession of the child,

46a

MEGAN KATHLEEN QUENZER, to FRED AUGUST

QUENZER, JR. on January 26, 1981 and that subse-

quent possession be determined as herein specified.

It is ORDERED, ADJUDGED and DECREED that

the Managing Conservator shall have all rights, privileges,

duties and powers of a parent to the exclusion of the other

parent, subject to the rights, privileges, duties, and powers

granted to any Possessory Conservator named in this

Decree.

It is ORDERED, ADJUDGED and DECREED that

NOLA KATHLEEN be and is hereby appointed Posses-

sory Conservator of the child, MEGAN KATHLEEN

QUENZER.

It is ORERED, ADJUDGED and DECREED that

NOLA KATHLEEN, as Possessory Conservator, shall

have possession and access to the child as follows:

1. During the second weekend of each month, in

Harris County, Texas, with the period of possession

being from ten o’clock a.m. to six o’clock p.m. 0%

Saturday and two o’clock p.m. to six o’clock p.m.

on Sunday with the child to be promptly returned to

the QUENZER residence in Harris County, Texas;

2. During even numbered years beginning in 1952

and every even numbered year thereafter, for a period

beginning on the first day of the child’s Christmas

school vacation and ending no later than ten o’clock

p.m. on December 26 of such even numbered year;

3. For a period of 30 days during the summer school

vacation;

4. At all other reasonable times that may be agreed

upon by the parties in writing.

Wit’

47a

Respondent shall give Movant thirty days written no-

tice, by certified or registered mail, Return Receipt Re-

quested, of any summer visitation she intends to exercise

and her failure to give such notice shall be deemed a

waiver of summer’s visitation.

Respondent will be required to post a $2,000.00 bond

with the Court prior to any visitation. Said bond shall be

returned to Respondent upon her timely surrender of the

‘child to the Managing Conservator. If the child is not

timely returned then the bond shall be paid over to FRED

AUGUST QUENZER, JR. upon proper order of this

Court.

It is ORDERED, ADJUDGED and DECREED that

NOLA KATHLEEN shall bear the cost of the child’s

travel expenses from the Managing Conservator’s Texas

residence to the Possessory Conservator’s residence and

FRED AUGUST QUENZER, JR. shall bear the cost of

the travel expenses for the child’s return with such travel

expense to be limited to the cost of travel from the Managing

Conservator’s Texas residence to the Possessory Con-

servator’s residence incurred by the Possessory Conserva-

tor. Each party shall bear his or her cost of transporta-

tion which shall be fully paid by both parties thirty days

prior to the exercise of said summer or Christmas visita-

tion. Said splitting of costs is limited to the thirty day

summer visitation and the evea numbered Christmas visi-

tation. All other visitation shall be solely at the expense

of NOLA KATHLEEN.

It is ORDERED, ADJUDGED and DECREED that

the Possessory Conservator shall have the following rights,

privileges, duties, and powers during the period of posses-

sion:

48a

1. the duty of care, control, protection and reason-

able discipline of the child;

2. the duty to provide the child with clothing, food

and shelter; and

3. the power to consent to medical and surgical

treatment during an emergency involving an immedi-

ate danger to the health and safety of the child.

It is ORDERED, ADJUDGED and DECREED that

all prior child support payments due NOLA KATHLEEN

from FRED AUGUST QUENZER, JR. as ordered by

the Oregon Court, referenced above and by this Court,

are from this date forward no longer imposed upon FRED

AUGUST QUENZER, JR., with all support payments

as of this date as follows: NOLA KATHLEEN shall pay

to MEGAN KATHLEEN QUENZER child support in

the amount of $25.00 per month, with the first payment

being due and payable on the Ist day of February, 1981,

and a like payment being due and payable on the same

day of each month thereafter until the child reaches the

age of 18. All payments shall be made through the Harris

County Child Support Division, 1115 Congress, Houston,

Harris County, Texas 77002 and thereafter promptly

remitted to the Managing Conservator for the support

of the child, MEGAN KATHLEEN QUENZER. On or

before January Ist of each year, NOLA KATHLEEN

shall pay a $12.00 administrative fee to the Harris County

| Child Support Division.

It is ORDERED, ADJUDGED and DECREED that

NOLA KATHLEEN and FRED AUGUST QUENZER,

JR. shall make any change of their current telephone

number and current addresses available to the other and

this court within ten days from any change of address

504

77521 to P. O. Box 7091, Bay Plaza Station, Baytown,

Texas 77579.

Any relief not specifically granted is hereby denied.

All costs of court in this cause are adjudged against the

party by whom incurred, all of for which let execution

issue.

SIGNED and ENTERED this 21st day of January,

1981.

/s/ ALVIN ZIMMERMAN

Honorable Alvin Zimmerman

APPROVED:

/s/ MORLEY H. WHITE

Morley H. White

021321000

White, Freedman and Associates

4200 Westheimer, Suite 151

Houston, Texas 77027

(713) 961-5854

/s/ JAMES M. GERSON

James M. Gerson

07828000

2211 San Jacinto Street

Houston, Texas 77002

(713) 659-1302

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