Arkoosh v. Arkoosh

• Decision Date: 19 December 1945
• Docket Number: 7265
• Citation: 66 Idaho 607,164 P.2d 590
• Parties: JOHN ARKOOSH, Plaintiff-Appellant, v. CLEO FAULKNER ARKOOSH, Defendant-Respondent
• Court: Idaho Supreme Court

164 P.2d 590

66 Idaho 607

JOHN ARKOOSH, Plaintiff-Appellant, v. CLEO FAULKNER ARKOOSH, Defendant-Respondent

No. 7265

Supreme Court of Idaho

December 19, 1945

1. Parent and child

The welfare and best interests of minor child are the paramount consideration in determining right to custody of such child and right of visitation. (I.C.A., sec. 31-705.)

2. Divorce

The district court has complete and continuing jurisdiction in divorce action to determine both right of custody of minor child and right of visitation. (I.C.A., sec. 31-705.)

3. Divorce

Jurisdiction to determine visitation of minor child whose custody was awarded to mother in divorce action, continued in the divorce suit until child reached his majority, and father could not maintain independent suit to determine visitation. (I.C.A sec. 31-705.)

Appeal from the District Court of the Fourth Judicial District, for Gooding County. Hon. Thomas E. Buckner, Presiding Judge.

Affirmed.

James Shaw & James for appellant.

In the absence of a specific provision in the divorce decree to the contrary, a parent, although deprived of the custody of a child, is nevertheless entitled to visit such child. Hays v. Hays, 123 S.W. (2d) (Tex.) 968; Phipps v. Phipps, 154 S.W. 825 (Miss.) ; Tillinghast v. Clay, 111 S.E. Rep. (Ga.) 384; Eaton v. Eaton, 237 S.W. 896 (Miss.) Burge v. Burge, 88 Ill. Rep. 164; 46 C.J., Page 1221, Section 6; 27 C.J.S., Page 1177, Section 312.

Courts of equity have the right, in proceedings separate and apart from the original case to interpret and enforce the provisions of a decree of the court. Gile v. Laidlaw, 52 Ida., 665; 20 P.2d 215; 19 Am. Jur., page 289, Section 420, Page 163, Section 188; 28 Am. Jur. 209.

Chapman & Chapman for respondent.

Courts having jurisdiction of divorce proceedings have full authority to provide for the custody and support of the infant children of the marriage, and the jurisdiction of the divorce case over the custody and maintenance of the children is exclusive and continuing although decree of divorce has been entered therein.

Section 31-705 I.C.A.; Section 303, Vol. 27, C.J.S. 1162; Section 306, Vol. 27, C.J.S. 1165; Section 789, Vol. 19, C.J. 341; Section 793, Vol. 19, C.J. 342; Stewart v. Stewart, 32 Ida. 180, 180 P. 165; Gifford v. Gifford, 50 Ida. 517, 297 P. 1100; Kirkpatrick v. Kirkpatrick, 52 Ida. 27, 10 P.2d 1057.

Where the jurisdiction to grant a divorce and award the custody of the minor children of the marriage one attaches that jurisdiction is a continuing one so that the power to amend, modify or annul an order of custody for the welfare of children as existing conditions may demand ever after remains. Olson v. Olson (Cal. App.), 272 P. 1113; Hale v. Hale aCal. App.q, 132 Pac. (2) 67; Bancroft v. Bancroft (Cal.), 173 P. 582; Fleming v. Fleming (Nev.), 72 P.2d 1110; Gallagher v. Gallagher (Ore.), 146 P.2d 768.

Holden, J. Ailshie, C. J., and Givens and Miller, JJ., concur. Budge, J., neither sat at the hearing nor participated in the above entitled case.

OPINION

Holden, J.

This is an independent suit brought to obtain a decree awarding plaintiff-appellant, John Arkoosh, right to visit the minor child of plaintiff-appellant and defendant-respondent, Cleo Faulkner Arkoosh.

Appellant and respondent were married July 29, 1935. Of that marriage was born a son, John William Arkoosh, now eight years old. September 18, 1940 appellant and respondent were divorced. The decree, among other things, awarded, pursuant to stipulation, the custody of said child, then three years old, to the mother. December 14, 1944, appellant filed a complaint against respondent in the District Court of the Fourth Judicial District, in and for Gooding County, Idaho, the pertinent allegations of which are:

"That upon frequent occasions since the rendition of said decree the plaintiff has sought defendant's permission to visit said minor child and has endeavored to visit him but upon all occasions the defendant has refused and still refuses to permit the plaintiff to visit said minor child, to talk to him or to send him presents of any kind, and plaintiff has never been able to visit said child or to talk to him. That upon several occasions the plaintiff has sent presents to said minor child but with one exception they have been returned to the plaintiff and plaintiff believes and alleges that said presents were returned to the plaintiff by the defendant or on her orders.

"That the plaintiff has at all times had and still has a deep affection for said child and a desire and longing to visit said child and to talk with him, to send him presents and to have said child keep said presents, but plaintiff alleges that unless the defendant is required by judgment of the court to permit the plaintiff to visit said child and to talk to him and to send presents to said child and to permit said child to keep said presents, the defendant will continue to refuse to permit the plaintiff to visit said child or to talk to him and will continue to return to the plaintiff any presents which he may send to said child, and will prevent the defendant from visiting said child or talking to him and will prevent said child from keeping said presents."

Defendant-respondent demurred to the complaint on the ground it did not state facts sufficient to constitute a cause of action. The court sustained the demurrer and entered judgment dismissing the suit. The appeal to this court is from the judgment.

The record presents the question as to whether the District Court, in an independent suit, has jurisdiction to determine right of visitation of a divorced parent where the other divorced parent, awarded custody of a minor child by decree in the divorce suit, refuses to permit visitation. Or, in other words, whether jurisdiction to determine visitation (as well as all matters or any matter affecting the welfare of a minor child and its best interests), continues, as in vacating or modifying an order granting custody of a minor...