Anderson v. Anderson
| Decision Date | 02 March 1963 |
| Docket Number | No. 43056,43056 |
| Citation | 191 Kan. 76,379 P.2d 348 |
| Parties | Earl V. ANDERSON, Appellant, v. Dorothy Pearl ANDERSON, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
A husband and wife were divorced. No children were born of the marriage. The husband had a minor child by a former marriage who had been brought into the home of her father and stepmother. Upon granting the divorce to the stepmother on her cross-petition, the trial court found the father to be an unfit person to have the care and custody of his child and awarded custody to the stepmother. The father appeals--contending that the language of the statute (G.S.1961 Supp. 60-1510), directing that when a divorce is granted the court shall make provision for the guardianship, custody, support and education of the 'minor children of the marriage,' vests the court with power and authority to make provision only for such children born as a result of the marriage and does not include a child of one of the parties by a former marriage--and therefore the order in question, being beyond the power and authority of the court to make, is void.
The record is examined and it is held:
(1) The evidence was sufficient to support the finding of unfitness on the part of the father.
(2) Following State v. Taylor, 125 Kan. 594, 264 P. 1069, the trial court was fully authorized and empowered to award custody to the stepmother.
Karl V. Shawver, Jr., Paola, argued the cause, Guy Lamer, Iola, with him on the brief, for appellant.
John O. Foust, Iola, argued the cause, Kenneth H. Foust, Iola, was with him on the brief, for appellee.
This is a child custody matter arising out of a divorce action.
The question concerns the power and authority of the trial court to award custody of the child to the stepmother.
The factual background of the matter is this:
Earl V. Anderson and Dorothy Pearl Anderson were married on June 8, 1958. His eleven-year-old daughter, by a former marriage, Brenda Louise, was taken into their home and lived with them. No children were born of the marriage of Earl and Dorothy. On December 2, 1960, Earl sued Dorothy for a divorce, alleging gross neglect of duty and extreme cruelty. In his petition he alleged that, although his daughter Brenda was staying with Dorothy temporarily, he desired to have her care, custody and control.
On January 5, 1961, Dorothy filed her answer in the form of a general denial. It also included the following:
'That the defendant has under her care and control the minor child of the plaintiff as a result of a former marriage; that said child is happy, contented and well cared for and although she has no legal right to said child, she has been in the past and is now willing to continue the responsibility of caring for said child providing the plaintiff will make proper financial arrangements.'
Apparently no further action in the matter was taken until October 23, 1961, when Dorothy filed a cross-petition seeking a divorce from Earl on the grounds of extreme cruelty and gross neglect of duty. The prayer of this cross-petition also sought:
'* * * such other and further relief as she may be entitled to under the facts and circumstances of this case.'
The case was tried on October 24, 1961, and taken under advisement.
On December 28, 1961, and while the case was still under advisement, Dorothy filed the following motion to enlarge the prayer of her cross-petition:
'WHEREFORE, defendant prays that the prayer of her cross petition be enlarged, requesting that the Court enter such orders as in the opinion of the Court may be in the best interests of the minor child, Brenda Louise Anderson, and that the Court enter its order granting the care, custody and control of the minor child to Dorothy Pearl Anderson, the defendant, and that he enter such other and further orders for the support of said child as may be reasonable and proper under all the circumstances.'
The motion was allowed.
On January 9, 1962, the trial court rendered its decision in which it denied a divorce to Earl and granted a divorce to Dorothy on her cross-petition. The court's memorandum decision contained the following:
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Paquette v. Paquette
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