Beard v. Beard, 3055

• Decision Date: 20 February 1962
• Docket Number: No. 3055,3055
• Citation: 368 P.2d 953
• Parties: Nina Jeane BEARD, Appellant (Defendant below), v. Donald Dwight BEARD, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 953

368 P.2d 953

Nina Jeane BEARD, Appellant (Defendant below), v. Donald Dwight BEARD, Appellee (Plaintiff below).

No. 3055.

Supreme Court of Wyoming.

Feb. 20, 1962.

Raymond B. Whitaker, Casper, for appellant.

Allen H. Stewart, Casper, for appellee.

Before BLUME, C. J., and PARKER, HARNSBERGER and McINTYRE, JJ.

Mr. Chief Justice BLUME delivered the opinion of the court.

The appeal in this case involves in the main the question as to whether or not the trial court erred in refusing to modify a decree of divorce, particularly in connection with the custody of the children of the parties and the division of the property.

The decree of divorce involved herein is in the case of Donald Dwight Beard of Nina Jeane Beard. The petition in that case was filed in the District Court of Natrona County on November 15, 1960, alleging that the plaintiff and defendant were married to each other at Kimball, Nebraska, on August 12, 1953; that two children were born as issue of said marriage, to wit, Stephen Dwight Beard, age 6, and Alana Jeane Beard, age 5; that plaintiff was a fit and proper person to have the care and custody of said children; that the defendant had been guilty of extreme cruelty to the plaintiff and had offered such indignities to plaintiff as to make his marital condition intolerable and impossible of further continuance; that the parties owned real and personal property as follows, Lot 43 of Fort Casper Addition to the City of Casper, Natrona County, Wyoming, a 1957 Ford automobile, and household furnishings in the marital home; wherefore plaintiff asked for a decree dissolving the marriage; that he be awarded the sole custody of the children; and that the court decree a just and equitable division of the property of the parties. The decree of divorce in that case was entered in the court below on December 10, 1960. The court found generally for the plaintiff and against the defendant and that the allegations of the plaintiff's complaint were true; that the parties had entered into an agreement that settled the questions that were in controversy; and that the terms and provisions of said agreement were fair and equitable and should be adopted by the court. The court accordingly decree that the bonds of matrimony existing between the plaintiff and defendant be dissolved; that the plaintiff should have the care and custody of the parties' children during each school year and that the defendant, Nina Jeane Beard, should have the custody of the children during the summer months when the children's schooling would not be interrupted; that the plaintiff should deliver the children to the residence of the defendant within a week after school is out for the summer and that plaintiff would pick up said children at defendant's residence a week prior to the commencement of school each fall; that each party should have reasonable rights of visitation with the children during the time that the children are in the custody of the other party. The court added to the decree that 'It is further ordered that said children will not be removed from the State of Wyoming until the party with whom said children will be residing places a bond with sufficient sureties in the sum of $250.00 with the Clerk of this court, said bond to be conditioned upon the return of said children to the jurisdiction of this court in compliance with this decree.'

The agreement of separation entered into between the parties is dated November 15, 1960. It provides that 'It is the judgment of the parties that the following provisions constitute a fair and reasonable adjustment of the problems facing them, and one which is for the best interests of all concerned.' It then provides, (1) for the custody of the children and visitation with them as provided in the decree of divorce as heretofore recited; (2) 'Each party shall have as his separate or her separate and sole property the personal property that is presently in their possession'; (3) that the plaintiff in the case should have as his separate property Lot 43 of Fort Casper Addition to the City of Casper, Natrona County, Wyoming, and the 1957 Ford automobile; and (4) that if either party should file for divorce, the terms and conditions of the agreement should be incorporated in the decree of divorce.

Thereafter on December 24, 1960, fourteen days after the divorce decree was entered, the defendant, Nina Jeane Beard, married a man by the name of Barrier. On February 28, 1961, she, in the name of Nina Jeane Beard, filed a motion in the District Court of Natrona County asking that the decree of divorce theretofore entered be modified on account of defendant's excusable neglect, mistake and inadvertence and plaintiff's misrepresentation and misconduct. The prayer of the motion is as follows:

'WHEREFORE, defendant moves the court as follows:

'1. That the decree of divorce made herein be amended insofar as it provides for child custody, support or lack of support of the minor children of the parties, a bond to be posted by the party having custody of the minor children, distribution of the property of the parties, the finding that the plaintiff is a fit and proper person to have the care, custody and control of the minor children of the parties, the binding effect of the Separation Agreement between the parties be amended and that defendant be relieved therefrom and these matters be relitigated and determined upon the basis of evidence presented to the court.'

On March 17, 1961, the court entered an order that the decree of divorce might be reopened for consideration by the court insofar only as concerned the validity of the making and execution of the separation agreement; in other words, to ascertain, as the trial court later expressed it, whether any compulsion or oppression was used upon the defendant.

The matter came on for hearing before the court on April 13, 1961. On April 20, 1961, the court entered an order that the motion for modification should be denied. From that order the defendant has...