State of Louisiana Ex Rel. Eaton v. Leis

354 N.W.2d 209, 120 Wis. 2d 271, 1984 Wisc. App. LEXIS 4034

• Court: Court of Appeals of Wisconsin
• Decided: July 15, 1984
• Docket: 83-1815
• Status: Published

Opinions

DYKMAN, J.

This is an appeal from an order dismissing a case brought under sec. 52.10, Stats., Wisconsin’s version of the Revised Uniform Reciprocal Enforcement of Support Act (URESA). Because the trial court erred in concluding it did not have subject matter jurisdiction to order respondent to pay support, we reverse.

The issue is whether a Wisconsin resident with legal but not physical custody of his or her children may be required to pay child support to the children’s other parent residing in another state with the children.

Because neither party filed a transcript, we must ignore some facts alleged in the parties’ briefs, for we can only decide this case on the record before us. Where the record is incomplete, this court’s review is limited to whether the record as filed sustains the judgment. Klug & Smith Co. v. Sommer, 83 Wis. 2d 378, 388, 265 N.W.2d 269, 273 (1978).

Patricia and Lambert Leis were divorced in 1978 in Monroe County, Wisconsin. Lambert was given custody of the parties’ minor children. In April 1983, Patricia filed a URESA petition in the Juvenile Court for Vernon Parish, Louisiana.¹ In her petition she stated that she has had custody of the children since May 25, 1981, and that she and the children are in necessitous circumstances and are in need of support from Lambert. The Juvenile Court certified the petition and sent it to the circuit court for Vernon County, Wisconsin. The circuit court ordered Lambert to show cause why he should not pay support for his minor children. After a hearing, the circuit court concluded it did not have subject matter jurisdiction because the Monroe County divorce judgment gave custody of Lambert’s minor children to him. It dismissed the order to show cause.

SUBJECT MATTER JURISDICTION

The Vernon County Circuit Court had subject matter jurisdiction. In Mueller v. Brunn, 105 Wis. 2d 171, 176, 313 N.W.2d 790, 792 (1982), the court said: “As we stated in Matter of Guardianship of Eberhardy, 102 Wis. 2d 539, 307 N.W.2d 881 (1981), subject matter jurisdiction is vested by the constitution in the courts of the State of Wisconsin. No circuit court is without subject matter jurisdiction to entertain actions of any nature whatsoever.”

DUTY TO SUPPORT

Section 52.10 (24), Stats., provides in part:²

If the responding court finds a duty of support it may order the obligor to furnish support or reimbursement therefor and subject the property of the obligor to the order. . . .

Section 52.10(2) (b), Stats., defines “duty of support”:

“Duty of support” means a duty of support whether imposed or imposable by law or by order, decree or judgment of any court, whether interlocutory or final or whether incidental to an action for divorce, separation, separate maintenance or otherwise and includes the duty to pay arrearages of support past due and unpaid. [Emphasis added.]

Neither party asserts that a duty of support has been imposed on Lambert. The only question we face, therefore, is whether a duty of support could be imposed on him. A duty of support could be imposed on Lambert if a court could award legal custody of the children to Patricia. The question whether support is imposable on Lambert is determined under Wisconsin law. Sec. 52.10 (7), Stats.³

We conclude that a duty of support could be imposed on Lambert. There is nothing of record to controvert Patricia’s statement in her petition that she has had custody of the parties’ children since May 25, 1981. Additionally, a state other than Wisconsin could properly give custody of the children to Patricia.

La. Rev. Stat. Ann. sec. 13:1702 (West 1983), part of Louisiana’s enactment of the Uniform Child Custody Jurisdiction Act, provides :⁴

A. A court of this state which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:

(1) This state (i) is the home state of the child at the time of the commencement of the proceeding, or (ii) had been the child’s home state within six months before commencement of the proceeding and the child is absent from this state because of his removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as parent continues to live in this state;⁵ or

(2) It is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (ii) there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; or

(3) The child is physically present in this state and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent; or

(4) (i) It appeals that no other state would have jurisdiction under prerequisites substantially in accordance with Paragraphs (1) , (2), or (3), 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 (ii) it is in the best interest of the child that this court assume jurisdiction.

B. Except under Paragraphs (3) and (4) of Subsection A, physical presence in this state of the child, or of the child and one of the contestants, is not alone sufficient to confer jurisdiction on a court of this state to make a child custody determination.

C. Physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody.

Section 822.03(1), Stats., part of Wisconsin’s enactment of the UCCJA, is nearly identical to La. Rev. Stat. Ann. sec. 13:1702. A custody jurisdiction dispute between the courts of Louisiana and Wisconsin could be resolved in favor of the Louisiana court. Louisiana therefore could validly give custody of the parties’ children to Patricia. If it did so, Wisconsin would recognize Louisiana’s judgment or decree. Sec. 822.13, Stats.⁶ A duty of support therefore is imposable on Lambert under Wisconsin law, and the trial court should have entered a support order.

Our conclusion is not altered by the fact that Patricia may have removed the children from Lambert’s custody in violation of a court order. In State ex rel. Hubbard v. Hubbard, 110 Wis. 2d 683, 329 N.W.2d 202 (1983), a father resisted support payments ordered by a California court after his ex-wife removed their children to California without the permission of the Wisconsin courts. After removal, the trial court granted legal custody to the father. He then resisted his ex-wife’s URESA action for support, partly because she had flouted the Wisconsin custody order. The supreme court said: “Since a support obligation is unaffected by the misconduct of the custodial parent, matters of visitation, custody, and contempt are of no concern in a URESA proceeding. Indeed, the express language of the URESA limits the responding court’s subject matter jurisdiction to support.” (Footnote omitted.) Id. at 690, 329 N.W.2d at 206. Stating that the ex-wife’s flouting of the Wisconsin order “is deplorable,” the court said that her actions “are not proper matters for consideration under the URESA.” The court held that the ex-wife could properly bring the URESA support action. Id. at 692-93, 329 N.W.2d at 207.

The ex-wife in Hubbard removed the children from Wisconsin while she had custody of them. In this case, the record is silent as to the circumstances surrounding the children’s removal from Wisconsin and whether they went to Louisiana with or without their father’s permission. The unknown facts are irrelevant, however in light of the supreme court’s statement that custody matters are of no concern in a URESA proceeding. We are bound by prior decisions of the Wisconsin Supreme Court. State v. Olsen, 99 Wis. 2d 572, 583, 299 N.W.2d 632, 638 (Ct. App. 1980).

It cannot be said that the statements in Hubbard making custody matters irrelevant in an URESA proceeding are dicta. Matters not decisive to the primary issue presented but germane to that issue are not dictum, and are a judicial act of the court which it will recognize as a binding decision. State v. Kruse, 101 Wis. 2d 387, 392, 305 N.W.2d 85, 88 (1981), citing Chase v. American Cartage Co., 176 Wis. 235, 238, 186 N.W. 598, 599 (1922). The Hztbbard court’s reference to the separation of support and custody matters, repeated three times and supported by authority, was germane to the issue decided.

We recognize that some courts have held that noncustodial parents who remove children from the custodial parent may not maintain URESA actions.⁷ We are not persuaded by these opinions. A child should not be punished for its parent’s misconduct.⁸ Even children “stolen” by a non-custodial parent need food, clothing and shelter. A parent with ability to provide support should be required to do so. Parents may litigate custody matters when they choose, but children’s need for support is immediate. Monson v. Monson, 85 Wis. 2d 794, 800-01, 271 N.W.2d 137, 140 (Ct. App. 1978).

By the Court. — Order reversed and cause remanded for further proceedings consistent with this opinion.

1 La. Rev. Stat. Ann. sec. 13:1668 (West 1983) provides in part:

If the initiating court finds that the petition sets forth facts from which it may be determined that the obligor owes a duty of support and that a court of the responding state may obtain jurisdiction of the obligor or his property it shall so certify and cause three copies of the petition and its certificate and one copy of this Part to be sent to the responding court. Certification shall be in accordance with the requirements of the initiating state. If the name and address of the responding court is unknown and the responding state has an information agency comparable to that established in the initiating state, it shall cause the copies to be sent to the state information agency or other proper official of the responding state, with a request that the agency or official forward them to the proper court and that the court of the responding state acknowledge their receipt to the initiating court.

2 Under both states’ versions of UEESA, the Louisiana court is termed the “initiating court,” and the Wisconsin court the “responding court.” La. Rev. Stat. Ann. sec. 13 ¡1642(d), (m) (West 1983); sec. 52.10(2) (d), (kz), Stats.

3 Section 52.10(7), Stats., provides in part:

Duties of support applicable under this section are those imposed under the laws of any state where the obligor was present for the period during which support is sought. . . .

4 The Uniform Child Custody Jurisdiction Act has been enacted in forty-nine states, including Wisconsin, and the District of Columbia. 9 U.L.A., 1984 Supp. at 19.

5 “Home state” is defined in La. Rev. Stat. Ann. sec. 13:1701 (5) (West 1983):

“Home state” means the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, for at least six consecutive months. . . . Periods of temporary absence of any of the named persons are counted as part of the six-month or other period.

6 Chapter 822, Stats., is Wisconsin’s enactment of the Uniform Child Custody Jurisdiction Act. Section 822.13 provides:

The courts of this state shall recognize and enforce an initial or modification decree of a court of another state which had assumed jursdietion under statutory provisions substantially in accordance with this chapter or which was made under factual circumstances meeting the jurisdictional standards of this chapter, so long as this decree has not been modified in accordance with jurisdictional standards substantially similar to those of this chapter.

7 See, e.g., Hethcox v. Hethcox, 246 S.E.2d 444 (Ga. Ct. App. 1978) (custodial father need not pay support to non-custodial mother who wrongfully removes children from jurisdiction). See also People ex rel. Oetjen v. Oetjen, 416 N.E.2d 278, 283 (Ill. Ct. App. 1980) (support abatement order prevents entry of URESA order); Campbell v. Campbell, 617 P.2d 66, 68 (Ariz. Ct. App. 1980) (mother retaining physical custody in violation of custody order lacks standing to bring URESA action for support).

8 A custodial parent whose child is “stolen” by a non-custodial parent is not without a remedy. Section 946.715, Stats., makes “child stealing” a felony.