Conflict of Laws – Custody Decrees – Jurisdiction to Modify and Effect in Sister States

Husband and wife were divorced in Wisconsin in 1956 by a judgment which awarded alimony, custody of the children, and support money to W. The custody decree provided that W be permitted to remove the children to California but that they be allowed to visit H each summer. While H was visiting California in October 1957, he was served in an action commenced by W seeking absolute custody. H returned to Wisconsin and on November 5 asked the Wisconsin court to modify its divorce judgment by awarding custody of the children to him. That court set a hearing and issued orders requiring W to show cause and restraining her from proceeding in the California action until the hearing, which orders were personally delivered to W. On December 12, the California court granted W an order which limited H‘s visiting rights. In January 1958, the Wisconsin court held that it had retained continuing jurisdiction, that it was not bound by the California action, and that W had willfully violated the Wisconsin restraining order. The court ordered that, pending Ws compliance with the original Wisconsin custody award, the court clerk should not forward to her the alimony paid in by H. On appeal, held, reversed and dismissed. Both states had jurisdiction over parties and the question of custody, but since the California action had already been commenced the Wisconsin court should have declined to entertain H‘s application. Brazy v. Brazy, 5 Wis. (2d) 352, 92 N.W. (2d) 738 (1958).