Gokey v. Gokey

• Decision Date: 03 December 1968
• Docket Number: No. 1112,1112
• Citation: 127 Vt. 334,248 A.2d 738
• Parties: Eugene W. GOKEY v. Marion GOKEY.
• Court: Vermont Supreme Court

Page 738

248 A.2d 738

127 Vt. 334

Eugene W. GOKEY v. Marion GOKEY.

No. 1112.

Supreme Court of Vermont.

Dec. 3, 1968.

Thomas P. Salmon, Bellows Falls, for plaintiff.

Joseph S. Wool, Burlington, for defendant.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

KEYSER, Justice.

This is a petition for the change of custody of a minor child of the parties. On November 7, 1963, after contest, the petitioner was granted a nisi decree of divorce from the petitionee on the ground of three years separation without fault of the libelant. The custody of a minor child, Kathy Ann, was decreed to the libelee. The libelant now seeks to have the custody of the child decreed to him. The petition brought September 30, 1965, was not heard until November 10, 1967. On its findings of fact the court issued a decree awarding custody to the petitioner. The petitionee has appealed.

After granting a divorce the court upon petition of a parent has authority to annul, vary or modify the order for the care and custody of minor children as it deems expedient. 15 V.S.A. § 292. It is the settled law of this court that to warrant the modification of a custody order the petitioner must show a substantial change in the material circumstances since the date of the decree. Buckminster v. Buckminster, 38 Vt. 248, 250; McKinney v. Kelley, 120 Vt. 299, 302, 141 A.2d 660; Miller v. Miller, 124 Vt. 76, 79, 197 A.2d 488. It is equally well settled that it is the welfare of the child which in the last analysis is determinative in a custody matter. McKinney v. Kelley, supra, at page 302, 141 A.2d 660. Change of circumstances is not a ground for modification of a custody order. It is a prerequisite. Ibid. Thus, the petitioner must first prove a 'substantial change in the material circumstances' and next prove that under the new conditions a change of custody is in the best interests of the child.

The first question raised by petitionee's exceptions to the findings is whether a substantial change in circumstances and conditions have developed subsequent to the divorce decree granted November 7, 1963. The revisionary power of the county court is first limited to this consideration. Loeb v. Loeb, 120 Vt. 489, 497, 144 A.2d 825.

By Finding No. 17 the court found 'That since the date of the divorce decree above referred to, there has been a change of circumstances as far as the parties here involved are concerned.'

It further found by No. 18 'That it would be in the best interest of said minor child that custody be vested in the libellant.'

The findings of the court show the following facts. Each party has remarried. Both petitioner and his wife are employed in Bellows Falls and have a gross income of about $150.00 per week. They live in an apartment in Saxtons River having ample room for the child to live with them. Petitioner is a hard worker and owns some real estate. If the child were to be located in petitioner's house his wife would give up her job to stay at home. The petitionee married her first cousin and they both work in Windsor and live in an apartment there. The petitionee works from 3:00 P.M. to 11:00 P.M. and her husband takes care of Kathy when she gets home from school until bedtime. Kathy resided with the petitionee's mother, Mildred Whitcher, from the fall 1963 through the fall of 1966. The petitionee visited her daughter occasionally. Kathy visited her father about a week in the summer of 1966 and again in 1967. She also spent around two days with him at Christmas time in 1966. The...