Patton v. Patton

• Decision Date: 09 February 1965
• Docket Number: No. 9470,9470
• Citation: 88 Idaho 288,399 P.2d 262
• Parties: Frances W. PATTON, Plaintiff-Appellant, v. N. H. PATTON, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 262

399 P.2d 262

88 Idaho 288

Frances W. PATTON, Plaintiff-Appellant, v. N. H. PATTON, Defendant-Respondent.

No. 9470.

Supreme Court of Idaho.

Feb. 9, 1965.

Rehearing Denied March 8, 1965.

R. M. Whittier, Pocatello, for appellant.

Milton E. Zener, Pocatello, for respondent.

McQUADE, Chief Justice.

In 1960 a decree of divorce was entered in favor of the plaintiff (wife and appellant herein) upon default of the defendant (husband and respondent herein).

An agreement between the parties relating to support and maintenance of the appellant and care, custody and control of the minor children was approved by the district court and by order incorporated into the decree of divorce.

The agreement between the parties vested in the respondent visitation rights in the form of custody of the children during summer months, at which time the agreement requires respondent to take a vacation and personally be with the children during the time of such custody. The agreement further provided that $75.00 be paid by respondent monthly for support of each child.

In 1963 the district court issued a show cause order directing the appellant to:

'* * * show cause why the decree heretofore entered in said cause should not be modified so as to provide that the care, custody and control of the minor children of the parties be vested in the Defendant [respondent], or such modification of the decree as the Court shall determine to be to the best interest and welfare of said minor children.'

The show cause order was predicated upon allegations in respondent's affidavit that the appellant neglected the children and that appellant intended to leave Idaho with the children, thereby to divest this state of jurisdiction over the children.

After a hearing the trial court made a finding of fact that both appellant and respondent were fit persons to have care, custody and control of the minor children. Upon such findings the trial court based its modification order. The trial court made no finding concerning the contention of respondent that appellant had neglected the children. The order granted respondent custody of the children commencing two weeks after the close of the school term of such school as said children may attend and retaining such custody until three weeks prior to the opening of the school term, also for one-half of any Christmas vacation. The court also ordered that respondent be relieved from paying child support while the children are in his custody during the summer months.

From this order of the trial court, appellant has taken her appeal.

Appellant argues that the trial court erred by modifying the decree as to support money in that notice of the hearing did not raise an issue concerning support money, thereby to advise appellant that she must defend against such an issue at the hearing. Appellant also contends that the evidence is insufficient to support the findings of fact and the order modifying the decree as to child support.

The appellant contends that the order to show cause raised issues only as to fulltime custody of the children, despite the phrase, 'or such modification of the decree as the Court shall determine to be to the best interest and welfare of said minor children.' The appellant contends this latter quoted language is insufficient to put her on notice of any issue other than general custody of the children and that since the trial court found that she was a fit and proper person, thereby refusing to change the custody, there was no basis upon which to modify the decree as to support money.

Appellant argues that Rule 7(b)(1) is the appropriate Rule of Civil Procedure relating to the technical requirements of the contents of an order to show cause. Ordinarily the order to show cause is issued by the court, predicated upon motion and affidavit of the moving party.

In Wenzel v. Wenzel, 76 Idaho 7, 276 P.2d 485 (1954), this court said:

'This proceeding was brought by the father to have the decree modified and the children's custody awarded to him. The mother resisted the application and by a separate motion asked to have support money payable by the father increased; also filed a motion for attorney fees and costs. On issues joined the matter was heard.' (Emphasis supplied)

Custody of children is a continuing matter before the court and as was said in Stewart v. Stewart, 32 Idaho 180, 180 P. 165 (1919):

'Courts of equity possess a continuing jurisdiction over the custody of children and an inherent power to amend, modify, or annul orders of custody, which, in their nature, are but temporary, as the welfare of such children under changing conditions may demand.'

I.R.C.P. Rule 7(b)(1) is the applicable rule and its requirement of particularity aids in the formulation of the issues. However, this does not limit expansion of the issues.

Rule 7(b)(1) reads:

'An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion.'

'The Rule provides that a motion must state with particularity the grounds therefor, and the relief or order sought. Reasonable specification is all that the requirement of particularity imposes.' Moore's Federal Practice, Vol. 2, p. 1542. It was stated that such requirement of particularity was not intended to be a matter of form but was real and substantial. Steingut v. National City Bank of New York, D.C., 36 F.Supp. 486 (1941); United States v. Krasnov, D.C., 143 F.Supp. 184 (1956), affirmed 355 U.S. 5, 78 S.Ct. 34, 38, 2 L.Ed.2d 21, 22. In Steingut, supra, it was stated that 'There should be strict compliance with the rules, otherwise they will be whittled away and become meaningless and undenforceable.' Further, practice demands that the basis of the motion and the relief sought shall be clearly stated. If this be done to the end that the other party may not assert surprise or prejudice, the requirement is met. Monjar v. Higgins, D.C., 39 F.Supp. 633 (1941). And, where it fails to state with particularity, then it is not in conformity with the Rules. Trammell v. Fidelity & Casualty Co. of New York, D.C., 45 F.Supp. 366 (1942).

Appellant contends that the court had no jurisdiction over minor children because the property settlement agreement proving for their custody and support had been incorporated into the divorce decree. Jurisdiction over minor children is not lost by a contractual agreement between the parents. While the husband and wife are competent parties to contract, Parke v. Parke, 76 Idaho 168, 279 P.2d 631 (1955), the minor children are not competent.

'Decrees and orders affecting the custody and support of children are subject to the continuing control of the court and do not become final. * * * (Under the foregoing statute (assuming the parties and the children remain subject to its jurisdiction) the court may make a valid order for the support of the children 'after judgment', * * *.' Application of Martin, 76 Idaho 179, 183, 279 P.2d 873, 875, 53 A.L.R.2d 582 (1955).

'An order modifying a decree relative to the custody of a child or children should only be made upon a showing of material, permanent and substantial change in the circumstances or conditions of the parties.' Wilson v. Wilson, 73 Idaho 326, 329, 252 P.2d 197, 198 (1953).

See also ...