Wilsonoff v. Wilsonoff

514 P.2d 1264
CourtAlaska Supreme Court
DecidedOctober 19, 1973
Docket1770
StatusPublished
Cited by6 cases

This text of 514 P.2d 1264 (Wilsonoff v. Wilsonoff) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wilsonoff v. Wilsonoff, 514 P.2d 1264 (Ala. 1973).

Opinion

514 P.2d 1264 (1973)

Roxie WILSONOFF, Appellant,
v.
William WILSONOFF, Appellee.

No. 1770.

Supreme Court of Alaska.

October 19, 1973.

Albert Maffei, Anchorage, for appellant.

No appearance for appellee.

Before RABINOWITZ, Chief Justice, and CONNOR, ERWIN, BOOCHEVER and FITZGERALD, Justices.

OPINION

RABINOWITZ, Chief Justice.

Appellant Roxie Wilsonoff appeals a superior court order awarding the custody of her two minor children to the children's father, appellee William Wilsonoff.

The parties in this litigation were divorced in Montana in 1970, following three years of marriage and the birth of two children.[1] At the time of the divorce, appellant *1265 was 16 years of age and appellee approximately 29. Appellee was granted custody of the two children by the terms of the 1970 Montana decree.

Later in the same year appellant moved the Montana court to modify the divorce decree in order to secure custody of the two children. This motion was denied by the Montana court in a proceeding at which all the interested parties appeared and were in personal attendance.

Then, in February of 1971, William Wilsonoff took the two children from Montana and moved to Alaska where they established residence. In 1972 appellant filed in the Montana court a second motion to modify the 1970 divorce decree, once again in an attempt to secure custody of the parties' two minor children. On April 24, 1972, the Montana court modified the 1970 decree granting control and custody of the two minor children to appellant. Appellee William Wilsonoff did not personally appear or give testimony at this second modification hearing. Appellee's opposition was voiced through affidavits.

The day following the entry of this order in Montana, Roxie Wilsonoff came to Alaska and attempted to forcibly remove the children from William Wilsonoff's custody and control. Her actions were violative of the April 24, 1972, modification order of the Montana court which provided in part that the order "shall be enforced only through the courts and only by their public officers in the jurisdiction wherever ... said children are found." Failing in her attempt to forcibly remove the children from Alaska, appellant sought to secure custody by means of a writ of habeas corpus and an order to show cause in the superior court of Alaska.[2] After an extensive hearing, at which the parties and their witnesses testified fully, the superior court denied the application for writ of habeas corpus, finding that the best interests and welfare of the minor children dictated retention of custody in the natural father.

In his oral decision, the trial court also emphasized that he found from the testimony presented a change in circumstances in the two weeks since the entry of the Montana court's April 24, 1972, modification order. Appellant argues in this appeal that the case at bar presents no evidence of any substantial change in circumstances since the entry of the April 24, 1972, Montana order. In light of this lack of changed circumstances, appellant further contends that the Montana order modifying child custody should have been accorded full faith and credit by the Alaska superior court in the habeas corpus proceeding.

Approximately two weeks passed from the time the Montana order was entered until the time that evidence was heard and an oral decision was rendered by the superior court in Alaska. The superior court found six significant changed circumstances in its findings of fact.[3] Our disposition *1266 of the central issues in this appeal makes it unnecessary for us to decide whether any or all of the six changed circumstances are in fact reflective of changed circumstances.[4]

Review of the superior court's record and findings of fact reveal that the court did not confine itself to a consideration of factors which arose subsequent to the April 24, 1972, Montana modification order. On the basis of all the evidence before it, the superior court concluded that the welfare of the two children would be best served by leaving them in the custody of their father, appellee William Wilsonoff.[5]

In the absence of any substantial change in circumstances since the April 24 order of the Montana court, appellant argues that the Montana custody order should have been accorded full faith and credit by the courts of Alaska.[6] Here the record reveals that at the time the April 24, 1972, Montana modification order was entered, William Wilsonoff and his two children had been domiciled in Alaska for more than a year.[7] The record also discloses that although William Wilsonoff was personally served in Montana prior to that state's most recent custody hearing, he was neither in personal attendance nor represented by counsel at this Montana proceeding.[8] During the course of the habeas corpus proceeding, the superior court heard detailed testimony as to the character, actions, and economic position of the parties, as well as similarly detailed evidence regarding the life style and treatment accorded the two children during the year they resided in Alaska. At the conclusion of the habeas corpus proceedings, the superior court found that appellant Roxie Wilsonoff had not been candid or frank in her testimony; that she was not self-reliant; that she was unable to control *1267 her temper and her emotions; that the element of stability was lacking in the life she planned and that her plans for the future were "ephemeral". Additionally the trial judge found that Roxie Wilsonoff "does not have an adequate home or promise of support from any other person on whom we can rely for that support or on whom she can rely based on the evidence... ."[9] On the other hand, the trial court found appellee William Wilsonoff a well-settled, stable, loving father, who planned to marry a very stable woman. The trial court also determined that appellee had in the past supported the children and had the stability to continue to do so. Finally, the court below found that apparently misleading information had been presented to the Montana court by appellant's mother, Carol Wilsonoff, in connection with the April 1972 modification order. Appellee had submitted to the Montana court Carol Wilsonoff's signed affidavit along with his own affidavit in an attempt to defeat appellant's motion for a change of custody. Carol Wilsonoff's affidavit was in part a declaration that William Wilsonoff was a devoted and loving father, and she apparently recanted this declaration when she testified before the Montana court. Yet, in the Alaska superior court proceedings, Carol Wilsonoff acknowledged by her testimony that William Wilsonoff was indeed a loving father.

Given the evidentiary basis for the trial court's findings and conclusions, we hold that to inflexibly apply the Full Faith and Credit Clause to the instant case would result in a default of our responsibility to ensure the welfare of minor children domiciled in Alaska.[10]

Justice Frankfurter, in reflecting upon the relationship of the Full Faith and Credit Clause to child custody cases, observed that "[l]egal theories and their phrasing in other cases readily lead to fallacious reasoning it uncritically transferred to determination of a State's duty towards children."[11] Justice Frankfurter concluded that a child's welfare had such a great claim upon a state that this responsibility was not to be foreclosed by a prior adjudication made by another state.

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Bluebook (online)
514 P.2d 1264, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilsonoff-v-wilsonoff-alaska-1973.