Anderson, Application of

• Court: Idaho Supreme Court
• Writing for the Court: SMITH; KEETON
• Citation: Anderson, Application of, 310 P.2d 783, 79 Idaho 68 (Idaho 1957)
• Decision Date: 02 May 1957
• Docket Number: No. 8475,8475
• Parties: Application of Diana Jean ANDERSON, Linda Lee Anderson and Michelle Anderson, for a Writ of Habeas Corpus. Ralph W. ANDERSON, Plaintiff-Appellant, v. Martha Anderson SMITH, Defendant-Respondent.

Page 783

310 P.2d 783

79 Idaho 68

Application of Diana Jean ANDERSON, Linda Lee Anderson and Michelle Anderson, for a Writ of Habeas Corpus Ralph W. ANDERSON, Plaintiff-Appellant, v. Martha Anderson SMITH, Defendant-Respondent.

No. 8475.

Supreme Court of Idaho.

May 2, 1957.

Gigray & Boyd, Caldwell, for appellant.

Lloyd C. McClintick, Nampa, for respondent.

SMITH, Justice.

Appellant and respondent, formerly husband and wife, are the parents of Diana Jean Anderson, born December 13, 1946, Linda Lee Anderson, born January 2, 1949, and Michelle Anderson, born September 8, 1951, minor children involved in these proceedings.

Appellant, in an action which he commenced in the Superior Court of California in and for Alameda County, case No. 239926, obtained a divorce from respondent, then Martha Anderson. The interlocutory decree entered therein January 16, 1953, granted the legal custody of the children to appellant, with rights granted respondent of reasonable visitation and to have the children during the months of June, July and August of each year. The final decree of divorce, entered September 13, 1954, incorporated the custody award of the interlocutory decree.

The parties have remarried and each has established a home. Appellant lives with his present wife at Caldwell, Idaho. Respondent lives with her present husband at East Hampton, Long Island, New York.

April 25, 1956, appellant commenced an action against respondent in the district court in and for Canyon County, alleging in his complaint the divorce and the child custody award of the divorce decree; also alleging his remarriage since entry of the California decree; that he is a resident of Caldwell, regularly employed, a home owner providing the children with a good home, a fit and proper person to have the custody of the children, and that it is to the best interests of the children that they remain with him. He then alleged the remarriage of respondent; that she is a resident of the State of New York, and not a fit and proper person to have the custody of the children. He sought to restrain respondent from interfering with his custody and control of the children who then were living with him and his present wife in their home at Caldwell.

May 2, 1956, respondent commenced a habeas corpus proceeding in said district court seeking the custody of the three children. She alleged that the California Superior Court in and for Alameda County is a court of general jurisdiction, which appellant admitted, and alleged, as did appellant, said divorce and the custody award of the divorce decree given and entered by that court; that she and appellant together with the children were residents of the State of California at the time of said divorce proceeding. She then alleged the entry by that court, April 24, 1956, of an order of modification of the custody award of the divorce decree whereby said court awarded to her the legal custody of the children, and that appellant had notice of the modification proceeding. She alleged acts of appellant intended to deprive her of rights of visitation with the children. The trial court, in response to respondent's petition, caused issuance of the writ, and detention of the children by an officer pending the outcome of the proceedings.

Respondent by her answer to appellant's complaint, and appellant by his return to the writ of habeas corpus, placed in issue essentially three questions, i. e.: First, whether appellant or whether respondent is a fit and proper person to have the custody of the children; Second, whether respondent is entitled to the custody of the children by virtue of the alleged April 24, 1956 order of the modification of the child custody award of the decree of divorce of the California Superior Court, or otherwise entitled to their custody by reason of changed conditions; and Third, whether the home surroundings and the environment in which appellant and the children reside, or the home surroundings and environment which respondent has to offer the children, is suitable and proper for their best interests and welfare.

Appellant, in addition to his return, moved to quash the writ on the ground that the alleged April 24, 1956 order of modification of the custody provisions of the California decree of divorce was void, for the reason that at the time of such alleged modification the children and appellant, their father, were and for many months had been residents of Caldwell, subject to the jurisdiction of Idaho's courts.

The trial court, pursuant to stipulation of the parties, consolidated the two proceedings for hearing and disposition on the issues framed. The court, after hearing the matters, found:

First: that in effect, both the parties apparently are of good moral character, particularly since the last marriage of each.

Second: that the April 24, 1956 alleged order of modification of the California Superior Court is void since neither the children, nor respondent or appellant were residents of the State of California at the time of entry of the order of modification.

Third: the trial court found facts relating only to the present marital life, home and environment of respondent, i. e., that respondent had led a respectable life since her last marriage which is sound and happy; that she and her present husband are respected members of their local community, active in church and civic affairs; that her present husband is willing and able to support the children and that the children's interests and welfare would best be served by awarding their custody to respondent.

The trial court failed to find any of the facts shown by the evidence relating to appellant's care and maintenance of the children, his marital life, home and environment, his employment, standing in his community and related circumstances.

The court then concluded that the interests and welfare of the children would best be served by awarding respondent the permanent custody of the children and allowing her to take them to her home in the State of New York, subject to appellant's reasonable rights of visitation with the children.

The trial court thereupon adjudged and decreed the permanent legal custody of the children to respondent with the right to remove them to the State of New York or other place where she may subsequently reside, subject to appellant's rights of reasonable visitation with the children, she to keep appellant informed of the place of residence of the children. Appellant has appealed therefrom.

Appellant asserts error of the trial court in disturbing his legal custody of the children and awarding their custody to respondent; in effect appellant challenges the sufficiency of the evidence to sustain the findings and conclusions of the court that the interest and welfare of the children would be best served by so changing their custody. Particularly, appellant contends that the record fails to show any material change of circumstances sufficient to modify the custody order of the California Superior Court awarding to him the legal custody of the children.

The ruling of the trial court, holding as void the April 24, 1956 alleged order of modification of the custody award of the decree of divorce of the California Superior Court, is not before us since respondent did not perfect an appeal, thereby to test the validity of such ruling. Consequently, the record shows that appellant's adjudged legal custody of the children commenced, upon the entry of the interlocutory decree of divorce and the custody award thereof, January 16, 1953, and continued uninterrupted until May 8, 1956, the time of the hearing of these proceedings and entry of the judgment and decree of the trial court.

Conflict in the evidence exists only as to respondent's contention that appellant and his relatives attempted to secrete the children in derogation of respondent's rights of visitation and to have the children during the summer months. The trial court found that appellant, by his removal of the children from Nevada to Idaho during April 1955 (the removal not being forbidden by the decree of the California Court), in effect thereby deprived respondent from having the children during the summer months of that year, in disobedience of the custody award of the divorce decree of the California Superior Court; nevertheless the trial court did not consider any such contempt as the 'sole reason for the court's decision.' Nor can this Court consider as controlling the contempt, if such there was, since contempt alone, on the part of a custodial parent, will not justify disturbing the custody of such parent. The rule is well stated, amply supported by authorities, in Kalousek v. Kalousek, 77 Idaho 433, 439, 293 P.2d 953, 957, as follows:

'Although plaintiff's conduct may have justified a proceeding against her in contempt, it would not warrant transferring the custody to the defendant, there being no showing that the welfare of the child was adversely affected by such conduct. Custody of children in divorce cases must always be determined upon the basis of the welfare of the children. It cannot be used as a means of...