Hoffman v. Hoffman

Decision Date02 September 1966
Docket NumberCA-CIV
PartiesRichard E. HOFFMAN, Appellant, v. Ruthann Fair HOFFMAN, Appellee. 1204.
CourtArizona Court of Appeals

Preston & Flournoy, by William R. Preston, Flagstaff, for appellant.

Grace & Egan, by William M. Egan, Flagstaff, for appellee.

CAMERON, Judge.

This is an appeal from a judgment modifying a previous divorce decree as to the custody and support of the parties' minor children.

We are called upon to determine whether or not there was a sufficient change in circumstances to warrant the court granting a change in custody.

The facts necessary for a determination of this matter on appeal are as follows: The appellee-wife filed a complaint for divorce 3 March, 1964. In the complaint she alleged that she was a fit and proper person to have the custody of the two youngest children, ages 1 year and 2 years, and that the appellant-husband was a fit and proper person to have the care, custody and control of the two older children (both girls) ages 6 and 7. The husband filed an answer and waiver of notice the same day. On 6 April, 1964, a judgment of divorce was granted, granting the care and custody of the two older children to the husband, and the care and custody of the two younger children to the wife, both subject to rights of reasonable visitation, and ordering the husband to pay to the wife the sum of $50.00 per month as and for the support of the two children awarded to the wife. Both the husband and the wife remarried shortly after the decree of divorce. A son was born the issue of the wife and her second husband.

In December of 1964, the husband and his second wife separated and a divorce was pending at the time of the hearing on the modification of the decree. The husband had sought, prior to that separation, psychiatric help from a doctor in Spokane, Washington. The two older children had been sent to the husband's parents in Montana where they were staying and attending school at the time of the hearing. At the time of the divorce, the husband lived in Page, Arizona. At the time of the hearing he was living at Lee's Ferry, Arizona, where he had been transferred by his employer, the National Park Service.

Hearing on the wife's petition to modify judgment was held 3 May, 1965, at which hearing both the husband and wife testified. The court amended the decree of divorce respecting the custody to provide that the wife would have the custody and control of the minor children during the summer months of each year and that the husband would retain the custody and control of the two older children during the remaining months, or during the school year. The court further provided that visitation rights of both parties should be full and complete and that the husband should pay an additional sum of $75.00 per month to the wife during the time that the said two minor children should be in the custody of the wife. From this judgment the husband appeals.

We have recently stated:

'The one who seeks to modify a decree has the burden of proof. Andro v. Andro, 9m Ariz. 302, 400 P.2d 105 (1965). The petitioner must show changed circumstances effecting the welfare of the child. Ward v. Ward, 88 Ariz. 130, 353 P.2d 895 (1960), modified as to other matters on rehearing, 88 Ariz. 285, 356 P.2d 30 (1960), Galbraith v. Galbraith, 88 Ariz. 358, 356 P.2d 1023 (1960), Smith v. Smith, 90 Ariz. 190, 367 P.2d 230 (1961). Upon a showing being made, the trial court exercises its sound judicial discretion. Ward. The order which it is sought to change is final upon the facts which were before the court at the time of the entry of the order. Ward. The primary consideration is the welfare of the child. Ward; Galbraith. The Court will look to the best interests of the child and not to the gratification of the parents. Galbraith. The interests of the parents are worthy of consideration. Ward. * * * The determination of the trial judge must be supported by the evidence and if it is so supported, it will not be set aside and it is the absence of such support, which constitutes an abuse of discretion. Ward; Galbraith. The trial judge is in the best position to determine the issues. Galbraith; Smith;...

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48 cases
  • Stapley v. Stapley, 1
    • United States
    • Arizona Court of Appeals
    • June 16, 1971
    ...who was seeking the change, had the burden of showing changed circumstances affecting the welfare of the children. Hoffman v. Hoffman, 4 Ariz.App. 83, 417 P.2d 717 (1966). The appellate role is a limited one--we do not sit as a super trial court but confine ourselves to one question: Is the......
  • In re Friedman
    • United States
    • Arizona Court of Appeals
    • June 19, 2017
    ...the children's best interests. See Galbraith v. Galbraith , 88 Ariz. 358, 363, 356 P.2d 1023, 1027 (1960) ; Hoffman v. Hoffman , 4 Ariz.App. 83, 85, 417 P.2d 717, 719 (1966). A person could sincerely possess such motivations and visitation could still be harmful. Likewise, the children's ap......
  • Reid v. Reid
    • United States
    • Arizona Court of Appeals
    • July 28, 2009
    ...primary duty of the court is to safeguard the best interests and welfare of the children." (citing Clifford)); Hoffman v. Hoffman, 4 Ariz.App. 83, 85, 417 P.2d 717, 719 (1966) (refusing to apply the court rule treating as a confession of error a mother's failure to file an answering brief i......
  • Bugh v. Bugh, 1
    • United States
    • Arizona Court of Appeals
    • March 11, 1980
    ...v. Counterman, 6 Ariz.App. 454, 433 P.2d 307 (1967); Blech v. Blech, 6 Ariz.App. 131, 430 P.2d 710 (1967); Hoffman v. Hoffman, 4 Ariz.App. 83, 417 P.2d 717 (1966). The issue raised in this case is purely a legal one. The facts are not in dispute. There is no reported Arizona decision involv......
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