Baus v. Baus

• Citation: 145 P.2d 241,60 Wyo. 44
• Decision Date: 25 January 1944
• Docket Number: 2269
• Parties: IRENE BAUS, Plaintiff and Respondent, v. VICTOR BAUS, Defendant and Appellant
• Court: United States State Supreme Court of Wyoming

145 P.2d 241

60 Wyo. 44

IRENE BAUS, Plaintiff and Respondent, v. VICTOR BAUS, Defendant and Appellant

No. 2269

Supreme Court of Wyoming

January 25, 1944

APPEAL from District Court, Sublette County; H. R. CHRISTMAS, Judge.

Divorce action by Irene Baus against Victor Baus. Application by defendant to modify the decree of divorce insofar as it awarded the custody of a minor child. From an order modifying the decree in certain respects, defendant appeals.

Affirmed.

C. G Cypreansen, of Casper, for appellant.

POINTS OF COUNSEL FOR APPELLANT

The natural parents are entitled to the custody of their minor children, except when they are unsuitable persons to be intrusted with their care, control and education, or when some exceptional circumstances appear which render such custody inimicable to the best interest of the child. While the right of a parent to the custody of its infant child is therefore in a sense, contingent, the right can never be lost or taken away so long as the parent properly nurtures maintains, and cares for the child. Wilson et al. v Mitchell, L. R. A. 30 N. S. 507; In Re Neff, 20 Wash. 652, 56 P. 383, 384; Miller v. Wallace, 78 Ga 479, 486, 2 Am. St. Rep. 48; In Re Gustin v. Gustin 116 P. 1072; Jackson v. Jackson 8 Or. 402; Swarens et al. v. Swarens, 97 P. 967; Crater v. Crater 67 P. 1049; Jones v. Bowman, 13 Wyo. 79, 77 P. 439; Tytler v. Tytler, 15 Wyo. 319, 89 P. 1; Nugent et al. v. Powell et al. 4 Wyo. 173, 33 P. 23; Clark v. Bayor, 32 Ohio St. 310; Piatt v. Piatt (Ida.) 184 P. 470; Taber v. Taber, (Cal.) 290 P. 36; Young v. Young, (N. M.) 124 P. 2d 776; Focks v. Munger (N. M.) 149 P. 300.

Ivan S. Jones, of Kemmerer, and Guy B. Hockett, of Pinedale, for respondent.

POINTS OF COUNSEL FOR RESPONDENT

Appellant's specifications of error are insufficient to present any appealable question to this Court. Dickerson v. State, 18 Wyo. 440, 111 P. 863; 2 R. C. L. 161, Sec. 135.

The Record on appeal does not contain all the evidence. Freeland v. Freeland, 92 Wash. 482, 159 P. 698; Rollins v. Duncombe, 24 Wyo. 341; 157 P. 896; Tytler v. Tytler, 15 Wyo. 319, 89 P. 1; Royal Ins. Co. v. Walker, et al., 23 Wyo. 264, 148 P. 340; Iowa State Sav. Bank v. Henry, 22 Wyo. 189, 136 P. 863; Callahan v. E. O. Houck, 14 Wyo. 201, 83 P. 372.

The decree giving custody of the child was final as to the conditions obtaining at that time. To warrant a modification of a decree fixing custody of a minor child, where there has been a decree of divorce, the burden is on the party seeking modification to establish a change of conditions since such decree. 9 R. C. L. 476, Sec. 291; Harris v. Muir, 24 Wyo. 213, 157 P. 26; Linch v. Harden, 26 Wyo. 47, 176 P. 156; Jewett v. Jewett (Mont.) 237 P. 702.

The trial court did not abuse its discretion. Nugent v. Powell, 4 Wyo. 173; Jones v. Bowman, 13 Wyo. 79; Tytler v. Tytler, 15 Wyo. 319, 89 P. 1; Kennison v. Chokie, 55 Wyo. 421, 100 P. 2d 97; Com. v. Butler, 84 Pa. Supr. Ct. 291; Freeland v. Freeland, 92 Wash. 482, 159 P. 698; Stirrett v. Stirrett, 35 Wyo. 206, 284 P. 1; Moore v. Moore, 33 Wyo. 230, 237 P. 235; Nugent v. Powell, 4 Wyo. 173; Jones v. Bowman, 13 Wyo. 79; Harris v. Muir, 24 Wyo. 213, 157 P. 26.

RINER, Justice. KIMBALL, C. J. and BLUME, J., concur.

OPINION

RINER, Justice.

The District Court of Sublette County, Wyoming on October 22, 1942, entered a decree of divorce and fixed, pursuant to the written agreement of the parties to that decree the custody of the one child of the marriage in the maternal grandparents. No attempt was made to have this decree reviewed. Thereafter on November 6, 1942, and at the same term of court during which the original decree of divorce was passed, the defendant, Victor Baus, filed in said court his application to have the decree aforesaid modified so as to limit the custody of said child to the defendant. The issues having ben made up relative to this application for modification on November 27, 1942, an order somewhat modifying the original decree of divorce as to custody of this child was entered wherein the rights of the parents to visit their offspring were more particularly and definitely set forth and it was further provided that the child should not be taken "beyond the borders of the State of Wyoming or beyond the jurisdiction of" said District Court "without the permission" of said court. From the amendatory order thus made this direct appeal has been undertaken.

The record before us is in this condition: It is in two parts, the first of which is made up of the original papers filed in the case and also certified copies of the journal entries. To this portion of the record is appended the certificate of the clerk of the District Court of Sublette County stating only:

"That the foregoing pages numbered one (1) to fifty (50) inclusive include all of the original papers filed in the above cause together with certified copies of all Journal Entries in said matter."

This certificate is followed by a certified copy of defendant's "Specification of Error." The second part of the record consists of what would seem to be a "Transcript of Evidence" taken at the hearing of the application for a modification of the divorce decree as aforesaid. This part of the record is uncertified as the statute (§ 89-4906 W. R. S. 1931) directs it must be to constitute it an integral portion of the record, viz., "that it is true and correct." It embraces at its close merely a certificate by the court reporter regarding said transcript and an additional certificate by the clerk of the district court of the county aforesaid as to the official character of the court reporter and that is all.

In George Bolln Co. vs. Freeman, 42 Wyo. 375, 294 P. 1110, after describing certain portions of the record filed in that case, this was said:

"Following this is a purported transcript of evidence with appended exhibits, together with two instructions numbered "A" and "B" which purport to have been asked by the defendants to be given the jury and to have been refused by the court. All are uncertified except there is a certificate by the court reporter concerning the transcript of evidence, and his official character is also certified by the clerk of the District Court. The law (§ 6406, supra) directs that the whole record "shall be certified to by the clerk of the District Court as true and correct," and points out exactly what shall be included in the record on appeal. But so far as the transcript of evidence in the case before us is concerned--which the law says "shall also form a part of the record on appeal"--the statute has not been obeyed by due certification. The transcript, accordingly, never became a part of the record. See W. H. Holliday Co. v. Bundy, (Wyo.) 289 P. 1094 and cases cited; Electrolytic Cooper Co. v. Board of County Commissioners, (Wyo.) 289 P. 1096 and cases cited. The consequence of this state of the record in the pending case is that we are unable to consider the alleged errors argued in the brief of appellant, inasmuch as they all involve questions which arise solely upon the evidence offered and received on the trial of the case and upon an alleged rejected instruction. In so far as the record on appeal may be considered by us, it supports the judgment and that must be affirmed." Section 6406 mentioned in the foregoing excerpt is identical with Section 89-4906, supra, the former being the section as numbered in the compiled statutes of 1920. In this connection, see also The Northwestern Terra Cotta Co. vs. Smith-Turner Hotel Co., 47 Wyo. 190, 33 P.2d 915 and cases cited.

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