# Appendix — Quenzer v. Quenzer

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1983
- **Citation:** 460 U.S. 1041

## Text

la
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.

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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

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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-

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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

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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

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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.

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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).

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(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-

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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

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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

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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

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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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_0461%3A2. Public record. Not legal advice.