Boles v. Boles
| Decision Date | 27 June 1921 |
| Docket Number | 4390. |
| Citation | 199 P. 912,60 Mont. 411 |
| Parties | BOLES v. BOLES. |
| Court | Montana Supreme Court |
Appeal from District Court, Hill County; T. A. Thompson, Judge.
Action by Eleanor Marie Boles against Charles Boles for divorce. From judgment for plaintiff, with grant of $50 per month permanent alimony and with custody of minor children to defendant, plaintiff appeals. Affirmed.
Freeman & Thelen, of Great Falls, for appellant.
Norris Hurd & Hauge, of Havre, for respondent.
Judgment of divorce was entered in favor of the plaintiff upon the ground of extreme cruelty by the District Court of Hill county. Thereby the plaintiff was allowed $50 per month as permanent alimony, and the defendant was awarded the care, custody, and control of the children, born as the issue of the marriage, namely: Vesta Marie, aged 13 years; Jack McCloskey, aged 10 years; and Eleanor Usilla, aged 8 years and also Charles Arthur, a legally adopted child, 1 1/2 years old. The appeal is from the judgment and the order denying plaintiff's motion for a new trial.
Plaintiff assigns four errors, raising but two questions for decision viz.: Did the trial court err (1) in making award of permanent alimony? and (2) in decreeing the care, custody, and control of the minor children to the defendant? Both of these questions will be considered together, as both involve inquiry as to whether the district court abused the discretion vested in it by statute, in each instance.
Section 3677, R. C., vests the district court with absolute discretion as to the amount of alimony the husband shall be required to pay, and section 3679 reads as follows:
"Where a divorce is granted for an offense of the husband, the court may compel him to provide for the maintenance of the children of the marriage, and to make such suitable allowance to the wife for her support, during her life, or for a shorter period, as the court may deem just, having regard to the circumstances of the parties respectively; and the court may, from time to time, modify its orders in these respects."
With respect to the care, custody, and control of the children of the marriage, the court may, before or after judgment, give such direction as may seem necessary or proper, "and may, at any time vacate or modify" its order. Id. 3678. In awarding the custody of minor children, the court is guided by that which appears to their best interests, and the court in making its determination must consider the temporal, mental, and moral welfare of the children, and, if they are of sufficient age to form an intelligent preference, their wishes will be considered by the court. Neither parent, irrespective of the ages of the children, is entitled to their custody as a matter of right. Id. 3783.
The trial court found that the plaintiff has no separate property or means of support; that the defendant is the owner of property, and is worth approximately the sum of $20,000 over and above just debts and liabilities; and awarded permanent alimony in the sum of $50 per month, to be paid by the defendant the 1st of each month, beginning November 1, 1918, and to be continued through plaintiff's life or until the further order of the court. With respect to the custody of the minor children, the court found as follows:
"The court further finds that the defendant is a man who is very much attached to his children, has at all times provided for them in a suitable manner, and has at all times and does now take a great interest in their education, and their welfare generally; and is a fit and proper person to have their care, custody and control; that all of the children, with the exception of the younger one, to wit, Charles Arthur Boles, expressed a desire to live with their father and to remain in his care, custody, and control; and that it is for the best interests of said children that they be kept and raised together, and that the...
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