Opposition Brief — Smelser v. Kelley (No. 84-1592)

Office -Supreme Court, U.S.

FIL ED

MAY 8 1985

ALEXANDER L. STEVAS,

CLERK

In The

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1984

~

;

i

|

|

No. 84-1592 o)

DANIEL R. SMELSER,

Petitioner

V.

THE HONORABLE CHARLES KELLEY,

JUDGE OF THE DISTRICT COURT

OKLAHOMA COUNTY, OKLAHOMA,

Respondent

ON PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF OKLAHOMA

RESPONDENT’S BRIEF IN OPPOSITION

JAMES H. BUXTON

Freeman, Buxton &

Anderson

2600 South Broadway

Edmond, Oklahoma 73034

(405) 341-6510

Attorney for Petitioner

i

TABLE OF CONTENTS

Page

MOUNTS HE TIN GORD: ier eccccsccsvticcsiccdsctccssscnceiscuseesisnss 1

Reasons Why the Writ Should Be Denied ............... 4

SINE sigs ican acconaguataestcns eAkianailoistisbeabdedendadisesiisonsuaian 10

li

TABLE OF AUTHORITIES

Cases Page(s)

Cox Broadcasting Corp. v. Cohn, 420

Be EE GEIR ecbiciisiosccsnnitavchccibkestiniapaiuetiamabeinpeilaodiins 7,8

Flint v. Ohio, 451 U.S. 619 (1981) .......... eee 8,9

Holt v. District Court, 626 P.2d 1336

I i ecainisasisaio 5, 6

Kulko v. Superior Court of California,

ee a Se I thease ini nancsnsnicceoinicaeh dai disesiinianavibcnsin 5, 10

Maryland v. Baliimore Radio Shows, Inc.,

EE eae SE ED sticsisstiechaitdataiehisnteshcenihendmmietannbinnesiienions Gg

May v. Anderson, 345 U.S. 528 (1953) .......... eee 5

Miami Herald Publishing Co. v. Tornillo,

Se eee A TET icccicknussiasdiscesnscbiislerisieihdainsiebctielabieliionl Sonics 8

Murdock v. Memphis, 87 U.S. (20 Wall.),

RARE RRRER Recta nr rt ore avi Teme TNE IN 6

National Socialist Party of America Vv.

Village of Skokie, 423 U.S. 43 (1977) ..............:::eeee00e 8

Radio Station WOW, Inc. v. Johnson,

I en a i eiecicinetoitlleponninnte 7

Worldwide Volkswagen v. Woodson,

ee a ee I aha bisisiice nisciessihaaetincedcdlccincaeeatensacaitchinieah 10

Statutes and Codes

Se te NG BE TED insskincconsicncnniiaiacttiiociotatibiactiseiamiiciiebetiral cst 6

Uta: UII, STINUIIN: scicsteoteicicdusinscisebiaeniceslaeaiiehciabtaiaihasnilitsteaabialas 5

In The

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1984

No. 84-1592

DANIEL R. SMELSER,

Petitioner

; v.

THE HONORABLE CHARLES KELLEY,

JUDGE OF THE DISTRICT COURT

OKLAHOMA COUNTY, OKLAHOMA,

Respondent!

ON PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF OKLAHOMA

RESPONDENT’S BRIEF IN OPPOSITION

The real party in interest, Lisa Smelser, the

Defendant below, prays that the Petition for a Writ

of Certiorari to the Supreme Court of Oklahoma be

denied.

STATEMENT OF THE CASE

This case involves a question of jurisdiction to

determine custody of a four-year old child, Phillip

1 The parties in the trial court below are Daniel R. Smelser, Piain-

tiff; and Lisa Smelser, Defendant. Charles Kelley was the judge in

the Trial Court, the Oklahoma District Court of Oklahoma County,

Oklahoma.

2

Daniel Smelser. Phillip’s parents, Lisa and Daniel

separated in December, 1982, when Lisa moved to

Seattle, Washington with her son, Phillip. The Par-

ents were divorced in Seattle, Washington, in May,

‘1984.7 in which action the Court granted custody of

the child to the mother. Both parties submitted to

the jurisdiction of the Supericr Court in Washing-

ton. In May, 1984, after the divorce, the mother

moved to California with her son.

In October, 1984, the father filed a Motion to

Modify Child Custody in Oklahoma, alleging an

emergency.’ Then, ostensibly for his regular fall

visitation, the father traveled to California, signed

an agreement that he would return the child to the

mother in two weeks, and returned with the child to

Oklahoma. After returning to Oklahoma, (where the

child had not lived for over two years), the father

had the mother served in California with the pro-

cess which the father had filed before he left. The

respondent mother made a special appearance in

the Oklahoma action.‘

After hearing evidence, the Honorable Judge

Kelley ruled on November 16, 1984 that no emer-

gency existed and declined to exercise jurisdiction

over the matter.’ Judge Kelley then called Judge

Nichols in California (before whom the custody

? Smelser v. Smelser, Case No. JFD 84-6458 (Oklahoma District

Court, Oklahoma County, filed October 24, 1984, Petition, Exhibit

“ A”’).

* Smelser v. Smelser, Case No. JFD 84-6458 (Oklahoma District

pa Oklahoma County, filed October 24, 1984) (hereinafter, Trial

urt.]

* Trial Court, Special Appearance and Motion to Quash.

* Trial Court, Journal Entry of November 16, 1984.

3

issue was then pending as well), and the two judges

agreed that this case be transferred to Judge

Nichols in California. The mother returned with

her son to their home in California.

From the trial court’s ruling, the Petitioner

chose to take two simultaneous routes to the Okla-

homa Supreme Court. First, he appealed the trial

court’s act of declining to exercise jurisdiction.®

Second, he sought to have the Oklahoma Supreme

Court assume original jurisdiction and issue a Writ

of Mandamus in his favor.’

In seeking the Writ of Mandamus, the Petitioner

contended that the trial judge concluded that the

Oklahoma District Court should not have jurisdic-

tion of this case. He further contended that a Cali-

fornia Court cannot have in personam jurisdiction

of the Petitioner for failure of minimum contracts.’

In the separate appeal of the decision of the trial

Court to the Oklahoma Supreme Court, Petitioner

raised (inter alia) the issues of the abuse of discre-

tion by the trial judge in declining jurisdiction and

the lack of minimum contacts required for a Cali-

fornia Court to exercise in personam jurisdiction

over the Petitioner.’

Upon declination of original jurisdiction by the

Oklahoma Supreme Court in Smelser v. Kelley, the

* Smelser v. Smelser, #63500 (Okla. Supreme Ct., Filed December

14, 1984) {hereinafter Gklahoma Appeal.]

7 Smelser v. The Honorable Charles Kelley, #53515 (Okla. Supreme

Ct., filed December 17, 1984, denied by Order, January 29, 1985) [here-

inafter Application for Writ of Mandamus.]

* Application for Writ of Mandamus, Petition, pp. 45.

* Oklahoma Appeal, Petition in Error, Exhibit “C”.

4

Petitioner sought a writ of certiorari in this Court.

REASONS WHY THE WRIT SHOULD BE DENIED

1. Neither the decision below nor the record

raises the question presented in the Petition.

The sole question presented in the Petition

(p. i.) is whether “minimum contacts” are a prereq-

uisite to the exercise of in personam jurisdiction by

a State Court over an individual in a child

custody modification proceeding. Petitioner’s

approach to this issue is novel. He asserts that the

Oklahoma Court has minimum contacts and relies

on alleged lack of contacts in the California forum.

He does not make a collateral attack upon the

Washington judgment for lack of in personam juris-

diction. On the contrary, he registered the Washing-

ton Divorce Decree in the trial Court. He does not

appeal on the cause in which he is named Defen-

dant in California and presents no record to show

the California action’s finality. In short, the argu-

ment he raises for the requirement of “minimum

contacts” in an action to determine the custody ofa

child inure to the benefit of the mother and are

precisely the reasons for which the Defendant be-

low made her special appearance to question the

jurisdiction over her person by the Oklahoma Trial

Court.

2. The record fails to show that the trial Court or

the Oklahoma Supreme Court decided a matter of

Federal law.

Neither the decision of the Oklahoma State

Supreme Court, nor the decision of Judge Kelley in

the Oklahoma County District Court clarify whether

the declination of jurisdiction was made upon con-

stitutional grounds based in the fourteenth amend-

9)

ment, or upon state law based on the Uniform Child -

Custody Jurisdiction Act as adopted by Oklahoma,

Title 10, Oklahoma Statutes, Section 1601, et.seq.

(Supp. 1980), [hereinafter referred to as the

U.C.C.J.A.]

It is well settled that a child custody determina-

tion is an action which requires in personam juris-

diction over both of the parents as a matter of

Federal law. May v. Anderson, 354 U.S. 528 (1953);

Kulko v. Superior Court of California, 436 U.S. 84

(1978).

However, under the discretionary provisions of

the U.C.C.J.A. the Oklahoma Courts have declined

to exercise jurisdiction as a matter of State law. In

Holt v. District Court 626 P.2d 1336 (1981), the Okla-

homa Court adopted the two step approach to deter-

mine whether to exercise jurisdiction. This

approach presents two questions: First, does the

Court have jurisdiction under the Act, and second,

if so, should that Court exercise its jurisdiction. 626

P.2d at 1341. The Court explained the Oklahoma

version of the U.C.C.J.A. as follows:

Our version of the U.C.C.J.A. contains

four prerequisites for jurisdiction... They

are alternative, and if the requirements of

any one of the four are met an Oklahoma

Court has jurisdiction. Even if jurisdiction

exists, however, it may not be proper for the

Court to exercise its jurisdiction. There are

three grounds set out in the Act, one manda-

tory and two discretionary on which the

Court must, or should decline to exercise

jurisdiction. . . In addition, the jurisdiction

of an Oklahoma Court to modify a custody

decree rendered by the Court of another

6

state is substantially curtailed.” 626 P.2d at

1341. (Emphasis added.)

One of the discretionary grounds for declining

to exercise jurisdiction is “when the Petitioner has

snatched the child, and improperly retained cus-

tody after visitation, or engaged in similar repre-

hensible conduct.” (Id.) Because the case has been

appealed, Smelser v. Smelser, No. 63500 (Okla. filed

December 14, 1984), the State’s Supreme Court may

yet render a decision showing adequate state

grounds to support the Trial Court’s decision.

Therefore, the Petitioner cannot, as required by the

Rules of the Supreme Court of the United States,

21.1(h), show “the way in which [the Federal ques-

tions] were passed upon by the Court... ” Nor

would review be proper, if the decision is deter-

mined by the State Supreme Court to have been

based upon adequate State grounds. Murdock v.

Memphis, 87 U.S. (20 Wall), 590 (1875).

3. The Petitioner has failed to establish that the

Order appealed from is final and, therefore, fails to

establish the jurisdiction of this Court.

The Petitioner invokes the jurisdiction of this

Court under the provision of 28 U.S.C. 1257(3). This

jurisdictional grant by Congress requires both a

“final judgment or decree” and a federal question.

The Petitioner has presented neither in his Peti-

tion. By pursuing two routes of appeal, only one of

which is completed, the Petitioner brings this mat-

ter before this Court while the matter is still pend-

ing before the State Supreme Court.

The general interpretation of this jurisdiction-

al statute precludes review “where anything fur-

ther remains to be determined by a State Court.”

7

Radio Station WOW, Inc. v. Johnson, 326 U.S. 120,

124 (1945). However, circumstances may exist in a

“very few” cases in which the “highest court of a

State has finally determined the Federal issue

present in a particular case, but in which there are

further proceedings in the lower state courts to

come.” Cox Broadcasting Corp. v. Cohn, 420 U.S. 469,

477 (1975). Although this Court now recognizes four

categories described in Cox Broadcasting in which

the decision will be treated as a final order on the

Federal issue, “[iJn most, if not all, of the cases in

these categories, the additional proceedings would

not require the decision of other Federal questions

that might also require review by the Court at a

later date...” Cox Broadcasting, at 477. When the

Petitioner himseif seeks further review of the very

issue raised there, in a state appellate proceeding,

he should not be heard to say that the order in the

intervening proceeding is final.

The case presented by the Petitioner meets

none of the exceptions enumerated in Cox Broad-

casting. The case does not meet the requirements of

the first three categories. First, there is no final

decision of a Federal question, as shown in reason

two above.

Second, a decision of the federal question pre-

sented here will not render “the outcome of further

proceedings preordained.” Cox Broadcasting at

479. If the Petitioner prevails in showing that Cali-

fornia does not have requisite minimum contacts

over his person, the mother still has the full pano-

ply of fourteenth amendment protection from the

imposition of in personam jurisdiction in Okla-

homa. If that hurdle is cleared, then the triai Court

8

will reach the merits of the case, the outcome of

which is not “preordained.”’

Third, if jurisdiction is accepted by the Okla-

homa Courts a broad range of issues, including the

Federal question of whether full faith and credit

shouid be given the Washington divorce decree,

will be presented for later appellate review.

Nor will allowing the case to proceed in the

normal appellate process of the State of Oklahoma

preclude review of the Federal question. On the

contrary, only by such proceeding will the record

below reflect the basis of the decision of the trial

Court.

The fourth category presented in Cox Broad-

casting, 420 U.S. at 482-483, allows this Court to treat

as fina] those decisions in which the State Court’s

decision on a Federal question might seriously

erode a Federal Policy. In the issues presented by

Cox Broadcasting this Court was able to clarify “an

important question of freedom of the press under

the First Amendment,” Cox Broadcasting, at 486, re-

moved the shadow under which the press was oper-

ating in Georgia, and most importantly brought the

litigation to an end. Id. This Court has accepted

cases for review when the Federal issue could be

clarified and long and complex litigation avoided.

See Miami Herald Publishing Co., v. Tornillo, 418

U.S. 241 (1974); and National! Socialists Party of

America v. Village of Skokie, 423 U.S. 43 (1977). This

Court has refused to grant a Writ of Certiorari, when

the case presented no final judgment and other

Federal issues remain to be resolved. Flint v. Ohio,

451 U.S. 619 (1981). In the Flintcase, delaying review

of whether or not a publication is obscene until the

Petitioner was convicted by the court below was

a retinas

th sential iA a nen

9

held not to seriously erode Federal policy within

the meaning of prior cases. Id. at 622.

A ruling in this case in favor of the Petitioner

would not end litigation in the Court below, nor

does the Petitioner raise a compelling Federal

Policy, which would be seriously eroded by this

Court’s decision to wait until the record below is in

a proper posture for decision of the Federal ques-

tion.

4. The cloudy record below commands the exer-

cise of judicial prudence by not granting the Writ of

Certiorari.

When a record is cloudy, even when important

questions are raised, judicial policy may require

that the Writ of Certiorari be denied, with the hope

that different aspects of an issue be illumined by

the Courts below. Maryland v. Baltimore Radio

' Shows, Inc., 338 U.S. 912 (1950).

The record below is deficient in other respects

on the issue of whether the trial Court had jurisdic-

tion. The Petitioner argues that the Oklahoma

Court cannot dismiss his action because the Cali-

fornia Court cannot gain jurisdiction over his per-

son. There have been no hearings held on the con-

tacts which Petitioner has with California, nor

would it be proper for an Oklahoma Court to make

the jurisdictional decision for the California Court.

There is simply no record offered by the father

which would justify any finding of minimum con-

tacts over the mother except the presence of the

child, which was accomplished by holding the child

in Oklahoma beyond the visitation return date.

Even if the father had absolutely no contacts in the

State of California, he cannot argue that jurisdic-

10

tion is proper against the mother when she merely

acquiesced in having her child make a visitation to

the State of Oklahoma [Kulko v. Superior Court, 436

U.S. 84 (1978)], nor did she have a reasonable ex-

pectation of being haled into the Oklahoma Court

because of her activities in California. Worldwide

Volkswagon v. Woodson, 444 U.S. 286 (1980).

Furthermore, no adversarial hearing has been

conducted for the purpose of determining the truth

of the allegations of activities occurring in Califor-

nia, but only upon the issue of whether an emer-

gency existed. Consequently, the cloudy record pre-

sented by this case does not present the issue prop-

erly developed for review.

CONCLUSION

In conclusion, the respondent urges this Court

to consider the incomplete nature of the record

below, the lack of a final judgment clearly express-

ing any Federal issue upon which the State Court

may have ruled, and the absence of any compelling

Federal policy to be protected by an immediate

action of the Court, in reaching a decision to deny

the Writ of Certiorari.

Respectfully submitted,

JAMES H. BUXTON

(OBA #1391)

Freeman, Buxton & Anderson

2600 South Broadway

Edmond, Oklahoma 73034

(405) 341-6510