Aiken v. Aiken
| Decision Date | 10 October 1947 |
| Docket Number | 8715. |
| Citation | 185 P.2d 294,120 Mont. 344 |
| Parties | AIKEN v. AIKEN. |
| Court | Montana Supreme Court |
Appeal from District Court, Ninth Judicial District, Pondera County John Hurly, Judge.
Action by Robert Aiken against Fern Aiken for divorce. Plaintiff was granted a divorce. From an order respecting custody of parties' child, both parties appeal.
Affirmed.
Murch & Wuerthner, of Great Falls, for appellant.
D. W Doyle, of Conrad, and Swanberg & Swanberg, of Great Falls for respondent.
In November, 1942, plaintiff, Robert Aiken, was granted a divorce from his wife, Fern Aiken. There were two children issue of the marriage, viz. Jo Ann, then aged seven years and Russell then four years of age. The court found both the husband and wife to be fit and proper persons to have the care, custody and control of the children and awarded the custody of Jo Ann to plaintiff, the father, and Russell to defendant, the mother. Plaintiff was ordered to pay $25 per month for the support of Russell. The decree provided that neither of the children be removed from the state.
In March, 1946, defendant made application for modification of the decree so as to permit her to take Russell to Denver, Colorado. In support of the motion she filed her affidavit in which she set forth that she has remarried and that her present husband resides at Denver where he has re-enlisted for a three-year period in the armed forces of the United States in the Air Force; that she desires to go to Denver to live with her husband and to take Russell with her.
After hearing, the court entered an order modifying the decree so as to permit defendant to take Russell to Denver beginning with the school year in the fall of 1946 and to keep him in Denver thereafter during each school year. The court required defendant to furnish bond in the sum of $1,000 conditioned upon the performance by her of all orders of the court in respect to the custody of the child.
The court by its order required defendant to return Russell to plaintiff at Conrad, Montana, within 10 days from the beginning of the school vacation at her expense and ordered plaintiff to return him to defendant at Denver at least 10 days before the beginning of the school year at plaintiff's expense. The court also relieved plaintiff of the requirement of paying $25 per month for the support of Russell.
Plaintiff has appealed from that part of the order allowing defendant to remove Russell from Montana and defendant has appealed from that part of the order allowing plaintiff to have the custody during the vacation period and from that part of the order relieving plaintiff of the necessity of paying for Russell's support.
From the evidence adduced at the hearing it appears that defendant's present husband has been in the army of the United States for 12 years and enlisted for an additional three years. He is stationed at Denver where he is attempting to buy a home. He has $3,000 with which to make the down payment, and is earning base pay of $200 per month with overtime for flying and defendant draws $80 per month as an allotment for herself and child. Jo Ann has been living with plaintiff's parents on a farm at Williams, Montana, where she seems happy. She and Russell naturally are very fond of each other and frequently were together while both were in Montana.
Defendant, before her second marriage, kept Russell with her in an apartment at Conrad where she lived for two and one-half years.
The question of whether a child should be removed from the state by one who has been awarded the custody is one that rests in the discretion of the trial court if there be any evidence sufficient to invoke the discretion. State ex rel. Graveley v. District Court, Mont., 174 P.2d 565, 568.
This case is governed by the rule which we recognized in the Graveley case, wherein we said: 'This case is not comparable to those wherein the mother is obliged to move to another state because of her subsequent marriage to another who has a home in another state, as in White v. White, 68 Cal.App.2d 650, 157 P.2d 415; Goade v. Goade, 20 Wash.2d 19, 145 P.2d 886, and Kirby v. Kirby, 126 Wash. 530, 219 P. 27.'
Here defendant is obliged to make her residence with that of her husband in Denver, Colorado. The court did not abuse its discretion in authorizing her to take Russell with her. True Russell will be deprived of the companionship of his sister during the school term but in choosing between the companionship of the sister and the mother the court cannot be said to have abused its discretion in saying, in effect, that Russell's welfare will be better promoted by having the companionship of the mother. Plaintiff stresses the fact that defendant's husband did not testify orally or by deposition and that his attitude toward...
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