Roosma v. Moots

• Decision Date: 30 April 1941
• Docket Number: 6889
• Parties: CECIL W. ROOSMA, Appellant, v. ALBERTA ROOSMA MOOTS, Respondent
• Court: Idaho Supreme Court

112 P.2d 1000

62 Idaho 450

CECIL W. ROOSMA, Appellant, v. ALBERTA ROOSMA MOOTS, Respondent

No. 6889

Supreme Court of Idaho

April 30, 1941

DIVORCE-CUSTODY OF CHILD-MODIFICATION OF ORDER-REMOVAL OF CHILD FROM JURISDICTION-APPEAL-WHO MAY APPEAL-AGGRIEVED PARTY.

1. The term "adverse party" in statute relating to service of notice of appeal on adverse party means a party who has an interest in conflict with a reversal of the judgment. (I. C A., sec. 11-202.)

2. The maternal grandmother of minor child of divorced parents was not "adverse party" upon whom must be served notice of appeal from order awarding child's custody to grandmother, where grandmother was not party to custody proceeding between divorced husband and wife and was not brought in by order or process of court, and did not seek custody of child by petition, but was merely custodian of child by appointment of court. (I. C. A., sec 11-202.)

3. A divorced wife filing petition seeking custody and control of minor child jointly with maternal grandmother was a "party aggrieved" under statute by order denying petition and awarding sole custody to grandmother, so as to be entitled to appeal from order. (I. C. A., sec. 11-103.)

4. The term "party aggrieved" in statute providing that any party aggrived may appeal means any person injuriously affected by the judgment. (I. C. A., sec. 11-103.)

5. Where divorced father and mother were each fit and proper to have custody of minor child, but were not in position to maintain, educate and properly care for child, in that mother moved from place to place by reason of roving nature of second husband's employment, and in that father was absent from his home half of the time, during which period the child would have to be left with strangers, on application for modification of divorce decree as to custody custody of child was properly awarded to maternal grandmother.

6. In determining custody of minor child, child's welfare and best interests is the paramount consideration. (I. C. A sec. 31-705.)

7. Under statute authorizing court in divorce action to give such direction for custody of children as may seem necessary or proper, disposition of children is in the first instance committed to discretion of trial court, and unless such discretion is abused, the judgment will not be disturbed. (I. C. A., sec. 31-705.)

8. The trial court can grant permission to custodian of child of divorced parents to remove child from state if child's welfare as a normal human being and future citizen require that such permission be given. (I. C. A., sec. 31-705.)

9. Evidence warranted order granting maternal grandmother, to whom was awarded custody of minor child of divorced parents, permission to take child out of state of Idaho to state of Washington where grandmother had purchased a home, the environment of which was conducive to health, happiness and proper care and training of child. (I. C. A., sec. 31-705.)

APPEAL from the District Court of the Fifth Judicial District, for Power County. Hon. Isaac McDougall, Judge.

From an order denying the petition of Cecil W. Roosma for the sole custody of minor child and awarding sole custody to child's maternal grandmother, he appeals, and from that part of the order denying the petition of Alberta Roosma Moots for the joint custody of the minor child of the parties, she appeals. Order affirmed.

Order affirmed. No costs allowed.

Anderson, Bowen & Anderson, for Appellant.

In a divorce action the custody of the minor children of the marriage should be awarded to one of the parents, unless the court finds that both parents are either unfit or unable to properly care for the child or children of the marriage. (Piatt v. Piatt, 32 Idaho 407, 184 P. 470; Swarens v. Swarens, 78 Kan. 682, 97 P. 968; Ex parte Barnes, (Ore.) 104 P. 296, 24 L. R. A. N. S. 172.)

It is presumed to be for the best interests of a child to be in the custody of its father where such father is a fit and proper person to have custody, rather than in that of a collateral relative, unless the contrary is shown by the evidence by reason of the father's unfitness or his abandonment of the child. (Piatt v. Piatt, 32 Idaho 407, 184 P. 470, 14 Cyc. 808; Hibette v. Bains, 78 Miss. 695, 51 L. R. A. 839, 29 So. 80; Sheers v. Stein, (Wis.) 5 L. R. A. 781.)

Where a modification of an original decree fixing the custody of the minor child is made by the district court, the order of modification must be supported, first by the finding of fact upon competent evidence, and the conclusions of law and order must find support in the findings of fact, and all findings must be supported by competent evidence, or the order of modification and judgment rendered should be reversed. (Clark v. Clark, 56 Idaho 6, 47 P.2d 914; Piatt v. Piatt, supra; Clark v. Clark, (Idaho) 69 P.2d 980; Corker v. Cowen, 30 Idaho 213, 164 P. 85.)

S. T. Lowe, for Respondent.

It is the established rule of this court, that all other considerations being equal, a child of tender age or a girl of even more mature years can and will be reared, trained and cared for best by its mother. (Keiger v. Keiger, 59 Idaho 301 at 307, 81 P.2d 1081; Kirkpatrick v. Kirkpatrick, 52 Idaho 27, 10 P.2d 1057; Luck v. Luck, (Cal.) 28 P. 787; Sauvageau v. Sauvageau, 59 Idaho 190, 81 P.2d 731.)

Unless a decree provides that a minor child cannot be removed from the state the person having custody of such child may do so. (Stetson v. Stetson, (Me.) 15 A. 60; Stirrett v. Stirrett, (Wyo.) 248 P. 1; Griffin v. Griffin, (Utah) 55 P. 84; In re Culp, (Cal.) 83 P. 89.)

HOLDEN, J. Budge, C. J., and Givens, Morgan and Ailshie, JJ., concur.

OPINION

HOLDEN, J.

--Appellant and respondent were married August 1, 1931, at Farmington, Utah, and shortly thereafter moved to Pocatello, Idaho. May 5, 1934, a daughter was born of said marriage and named Martha Jo. February 6, 1938, respondent left home, leaving a note reading: "Cecil sorry to leave but it's no go, don't worry about me I have a job and take care of myself and baby. BERT. I'll write to mother." February 24, 1938, appellant filed a complaint for divorce in the district court for Power County, charging extreme cruelty. The case was tried April 9, 1938, respondent making no appearance. April 18, 1938, respondent married J. W. Moots. The decree divorcing the parties was signed April 29, 1938, and filed the next day. The court awarded the custody of the child, then about four years of age, jointly to appellant and the child's maternal grandmother, Mattie Dougherty, until the child reached the age of six years. Some time in the month of December, 1938, the grandmother, without the knowledge or approval of either the court or appellant, went to California, taking the child with her. From California she moved to Seattle, Washington, then to Yakima, Washington, where appellant located her and the child in the summer of 1940 and commenced proceedings to obtain the child's custody. The grandmother then returned with the child to Pocatello. Respondent also returned to Pocatello and July 6, 1940, filed a petition for modification of the decree seeking the joint control and custody of Martha Jo. August 6, 1940, appellant also filed a petition for modification of the decree whereby he sought the sole custody and control of the child. These petitions were heard August 26, 1940. November 8, 1940, findings of fact and conclusions of law were filed and on the same day an order was made and entered denying both petitions and awarding the sole custody of Martha Jo to the grandmother "subject to the right of this court to enter an order, without notice to the said Mattie Dougherty or Alberta Roosma Moots, or either of them, providing that during the summer months of each year, when school is not in session that the said minor child may visit with her father, Cecil W. Roosma, either at Pocatello or at Nampa, Idaho, or at such other place or places as the court shall direct." The father, Cecil W. Roosma, filed notice of appeal from such order, and the mother, Alberta Roosma Moots, filed notice of an appeal from that part of the order denying her petition for the joint custody and control of the child, but did not cause a copy of the notice to be served upon Mattie Dougherty.

We will first discuss and dispose of appellant's motion to dismiss respondent's cross appeal. The motion presents two questions: first, is Mattie Dougherty an "adverse party" to this controversy within the meaning of Section 11-202, I. C. A., and secondly, is respondent "a party aggrieved" within the provisions of Section 11-103, I. C. A. Section 11-202, supra, provides:

"An appeal is taken by filing with the clerk of the court in which the judgment or order appealed from is entered, a notice stating the appeal from the same, or some specific part thereof, and serving a similar notice on the adverse party, or his attorney...."

The term "'adverse party,' as used in this section [R. S. 4808, new Section 11-202, supra], means any party who would be prejudicially affected by a reversal of the judgment, a party who has an interest in conflict with a reversal of the judgment." (Nelson Bennett Co. v Twin Falls Land & Water Co., 13 Idaho 767, 771, 92 P. 980; followed and adhered to in Eldridge v. Dickerson, 49 Idaho 636, 637, 290 P. 723; Hutton v. Davis, 56 Idaho 231, 233, 53 P.2d 345.) In the instant proceeding Mattie Dougherty was not a party, nor was she brought in by order or any process of the court, nor did she seek the custody of Martha Jo Roosma by petition or otherwise. Hence, she would not be bound nor prejudicially affected by any order or judgment entered in the controversy. Mattie Dougherty was and is a stranger to this litigation. In the circumstances shown by the record the...