Beebe v. Chavez , 226 Kan. 591 ( 1979 )

Schroeder, C.J.,

dissenting: The court erroneously gives the impression the trial court was without jurisdiction to evaluate Robert’s best interests and order a change of custody. The court relies heavily upon the Uniform Child Custody Jurisdiction Act, K.S.A. 1978 Supp. 38-1301 et seq., claiming that no emergency existed to provide the trial court with jurisdiction. The court then skips a cog in its legal reasoning and declares that the absence of an emergency within the meaning of the UCCJA deprived the trial court of jurisdiction under the habeas corpus statute. In its haste to eliminate the trial court’s jurisdiction, the court has ignored the fact that the UCCJA was not adopted in Kansas until after this habeas corpus proceeding was begun. This habeas corpus action was filed on July 7, 1977. The UCCJA, K.S.A. 1978 Supp. 38-1301 et seq., was adopted in 1978 and took effect on January 1, 1979.

The Kansas Supreme Court has long recognized that a habeas corpus proceeding is a proper vehicle for the determination of questions pertaining to child custody. For the purpose of determining the right to the custody of a child, the inquiry in habeas corpus proceedings extends far beyond the issues that ordinarily are involved in such proceedings. This was fully discussed in Miracle v. Miracle, 208 Kan. 168, Syl. ¶¶ 1-4, 490 P.2d 638 (1971), wherein we stated:

“Where the rights of contending parents to the custody of their children is presented in a habeas corpus proceeding, the trial court has authority, where all parties are before the court and the children are physically present in the State of Kansas,- to hear evidence of a change of circumstances when faced with an allegedly valid order from a sister state awarding custody to the petitioner, regardless of whether the court finds that sister state’s order to be constitutionally valid or invalid in the same proceeding.

“A habeas corpus proceeding is a proper vehicle for the determination of questions pertaining to child custody.

“The paramount concern of courts in every child custody proceeding is the welfare of the child.

“In the interest of a minor child’s welfare, a court of this state, when the child is physically present therein, has jurisdiction over his care, custody and control, although the court of a sister state has ‘concurrent jurisdiction.’ ”

Under Kansas habeas corpus statutes as construed by our case law, a court of this state, when a child is physically present therein, has jurisdiction over the child’s care, custody and control. Here the trial court had a child physically present in Marshall County where problems concerning the child’s hearing, sight, and education were the subject of inquiry. The trial court properly exercised its power of discretion and accepted jurisdiction in this action.

I am also disturbed by the court’s violation of an elementary rule of appellate review, that this court will not reweigh the evidence on appeal. After invading the trial court’s responsibility — to weigh the disputed testimony and observe the demeanor of witnesses first hand — the court erroneously finds that the trial court abused its power of discretion when it ordered a custody change.

Whether a child custody order will be changed or modified rests in the sound judicial discretion of the district court and its action will not be disturbed on appellate review unless the record makes it clearly appear the exercise of its power of discretion has been abused. Perrenoud v. Perrenoud, 206 Kan. 559, Syl. ¶ 6, 480 P.2d 749 (1971); see In re Thompson, 178 Kan. 1, 4, 282 P.2d 440 (1955); Moloney v. Moloney, 167 Kan. 444, 448, 206 P.2d 1076 (1949).

Several important trial court findings which were supported by the record were either omitted or distorted in the majority opinion. The majority states that Boyd was not concerned with his son’s welfare and cites the failure to pay child support as proof. The record shows that after the divorce Boyd diligently paid his child support obligation for several years. He discontinued the payments in compliance with appellant’s wish, and also in hopes that she would later return to the Arizona courts to enforce the obligation. He wanted to litigate the custody matter in the court of original jurisdiction. It is clear Boyd’s motive was to benefit the child. The discontinuance of payments followed on the heels of appellant’s short trip to Kansas, when she enrolled the child in school, obtained needed glasses for him, and then surreptitiously returned to Mexico. The evidence indicates Boyd was kept informed of Robert’s care and condition through Marilyn’s family. Indeed, it was members of Marilyn’s family who provided Boyd and the trial court with the initial evidence of Robert’s neglected health and education.

The court glosses over the fact that Marilyn was in violation of the Arizona custody decree when she took up residence in Mexico. The Arizona decree prohibited Marilyn from taking Robert outside the United States without a prior court order, except for visits of short duration to the Republic of Mexico. Yet Marilyn married a Mexican National and resided in Mexico, returning to the United States for short periods on an irregular basis. She was required to return to the United States for a mere 24-hour period every 180 days in order to retain her United States citizenship. Marilyn and Robert have lived with Mr. Chavez in four different Mexican towns, the latest residence being approximately 250-300 miles from the United States border.

Contrary to the conclusion of the majority, there was ample support for the trial court’s findings.

There is support for the trial court’s finding that the appellant relied on God for medical treatment. The court-ordered psychological evaluation states the appellant “rejects the use of medication and physicians”; that Robert’s need for speech therapy needed to be explored, and he suffered from a possible hearing impairment. Robert was twice provided with needed glasses, but only when he was in Kansas. Appellant left one pair of Robert’s glasses behind in 1974, when she heard “through the holy spirit” of a possible kidnapping. Robert initially objected to school required immunizations on religious grounds. During the pendency of this action, the appellant filed a motion to quash an ordered medical examination, which effectively prevented recommended medical treatment for Robert’s hearing impairment. While it is true there is testimony the appellant’s religion does not bar all medical treatment, there is clearly support for the trial court’s finding.

There is evidentiary support for the trial court’s finding that Robert’s education suffered from his family’s moves and the lower quality of the Mexican school system. The court ordered evaluation of Robert indicated he has normal intellectual abilities, but his formal academic level falls distinctly below Kansas’ norms. Robert did not begin school until he was eight years old, shortly before his ninth birthday. Mexican schooling does not begin until a child is eight years old. Robert was in the first grade for two years because he was not familiar with the Spanish language. When Robert was placed in school at Marysville at the beginning of this dispute he was found capable of doing fourth grade work. The appellant testified the use of identical textbooks at specific grade levels in all Mexican schools minimized any harmful effects of moving.

Any decision of this nature is inherently difficult, and when the evidence is in dispute the trial court has the advantage of observing the demeanor and weighing the credibility of the testimony of all witnesses. With due consideration for all of the evidence, including home studies and psychological evaluations, the trial court had a valid evidentiary basis for its findings.

The court also cites Jackson v. Jackson, 181 Kan. 1, 309 P.2d 705 (1957), and states that there was no authority to change custody on the basis of Marilyn’s admittedly unorthodox religious beliefs.

The question in this case goes beyond religious freedom. Here the trial court was concerned that appellant’s religious beliefs had led to neglect of Robert’s health. He had vision, hearing and speech impairments which had gone unattended until third parties forced action, including members of Marilyn’s family. In addition, Robert’s education was suffering as a result of Marilyn’s family’s moves “here and there” in Mexico; moves which were in part prompted by religious practices.

If the religious beliefs of a parent threaten a child’s health or well-being, or would lead to neglect of the child, the adverse effects upon the child may be considered in making a change of custody. See 24 Am. Jur. 2d, Divorce and Separation § 787, p. 894; Annot., 66 A.L.R.2d 1410, 1419. The misguided followers of Reverend Jim Jones transplanted their entire families to Jones-town, Guyana, as a demonstration of their love, care and concern for his religious preaching. Yet this court would not hesitate to find parents with such unorthodox religious beliefs are a real threat to the health and well-being of their children.

Since the trial court clearly concerned itself with the appellant’s religion as it affected Robert’s health and education, it cannot be said the trial court abused the exercise of its power of discretion in awarding custody of Robert to his natural father.

The majority opinion is obsessed with indignation over the initial seizure of Robert pursuant to a dependent and neglected child action. Here the Kansas Department of Social and Rehabilitation Services was involved. It is ironic that the court relies so heavily on the details of that juvenile proceeding. None of the actions taken by the juvenile court in the dependent and neglect proceeding are before this court for review. No appeal was taken in that action isasmuch as the appellant consented to a termination of that action by dismissal. One of her issues on appeal in this habeas corpus action was an objection to the trial court’s consideration of the evidence contained in that juvenile court file. Undoubtedly it was unacceptable to the appellant because it supplied the necessary facts to support the trial court’s findings.

Finally, I must be critical of the court’s decision to reverse and remand with directions to dismiss. Two years have passed since Robert’s custody was changed to his father. This fourteen-year-old boy has been living in Lincoln, Nebraska, attending public schools there. The court-ordered home study conducted in 1977 described the clean and comfortably furnished home which Robert would share with Boyd and Arlyne Beebe. Boyd and Arlyne have been happily married for eight years, and both had good steady jobs at the time the trial court ordered the custody change. All the evidence indicated that Boyd and Arlyne would provide Robert with a healthy and well-balanced academic and home environment. Both Boyd and Arlyne are indisputably fit parents to rear and educate Robert on the record here presented. Nevertheless, the court has chosen to reweigh the two-year-old evidence in the transcript and return custody of Robert to his natural mother.

It is respectfully submitted the judgment of the lower court should be affirmed.

Fromme and McFarland, JJ., join in the foregoing dissenting opinion.