Bradstreet v. Bradstreet

• Decision Date: 13 November 1928
• Docket Number: Civil 2778
• Citation: 271 P. 717,34 Ariz. 340
• Parties: HERBERT N. BRADSTREET, Appellant v. BONNY DOONE BRADSTREET, Appellee
• Court: Arizona Supreme Court

271 P. 717

34 Ariz. 340

HERBERT N. BRADSTREET, Appellant v. BONNY DOONE BRADSTREET, Appellee

Civil No. 2778

Supreme Court of Arizona

November 13, 1928

APPEAL from a judgment of the Superior Court of the County of Maricopa. J. E. Jones, Judge. Judgment affirmed.

Messrs Baxter & Carpenter, for Appellant.

Messrs Hayes, Stanford, Walton, Allee & Williams, for Appellee.

OPINION

LOCKWOOD, J.

Bonny Doone Bradstreet, hereinafter called plaintiff, brought suit for divorce against Herbert N. Bradstreet, her husband hereinafter called defendant, in the superior court of Maricopa county. The matter was heard and a divorce granted the decree providing that the custody of the two minor children of defendant and plaintiff should be alternated between the parties, each to have the children for one year at a time. Plaintiff removed to the state of California, and there married a man by the name of Bryan, defendant remaining in Arizona, and also remarrying. In June, 1927, plaintiff, who had previously had the children with her, brought them to Arizona and delivered them to their father in compliance with the decree. They remained with him until a few days before the time when according to the decree, they were to be returned to their mother, when defendant filed a petition asking that the decree be modified, to allow them to remain permanently with him. At this time the elder of the two children, Bonnie Doone, was thirteen years of age, and the younger Anne, was about eleven.

The trial court set the matter for hearing, and ordered that defendant furnish bond in the sum of five hundred dollars to cover the costs and counsel fees of plaintiff, in case she should prevail at the hearing, which bond was duly given. The matter was not heard by the judge who made the original order, but by one from an outside county. Evidence was presented on behalf of both plaintiff and defendant, it being the effort of defendant to show that the children's physical, moral and spiritual welfare would not be so well served by their being sent back to California to plaintiff, and plaintiff contending, on the other hand, that they were properly cared for by her, and that the original decree should stand. The court, after hearing the testimony, made the following findings of fact.

"That the removal of said children from the custody of the father to the state of California during the time they are to be in the custody of the mother of the plaintiff, will not work a hardship and be a menace to their education and training; that the grandmother of said children, Mrs. Alfred L. Hawley, of Venice, California, is a fit and proper person to have the care and custody of said children and that she is in no manner affected by the illness alleged in the defendant's petition herein; that the danger, if any, of said children while residing in California being about a hotel has been removed by the work of their mother being taken up elsewhere than with a hotel; that while said children have resided in California with the said Mrs. Alfred L. Hawley, they have not been subjected to any influence derogatory to their best welfare, but have been given proper discipline and training to inculcate in them a feeling of love and affection for each other and for the defendant; that both the mother and grandmother, Mrs. Alfred L. Hawley, are and have been looking forward to the best interest of said children in the way of their future education; that no influence has been brought to bear by the plaintiff or her mother, Mrs. Alfred L. Hawley, to prevent correspondence between the said minor children and their father while they were separated; that the physical, moral and spiritual welfare of said minor children is being cared for in advance while in the custody of the plaintiff and defendant herein; that the plaintiff herein is still a resident of the state of California and upon the filing of the petition herein and order to show cause she has come to the state of Arizona to be present at this hearing and has brought with her witnesses from the state of California to refute the allegations of the petition of defendant; that she has incurred attorneys' fees, and expenses and railroad fares, hotel bills and other expenses; that the court herein, when the order was made to require this plaintiff to show cause why the prayer of the petitioner should not be granted, directed that a bond in the sum of $500.00 be furnished by the defendant to cover costs and counsel fee of plaintiff should plaintiff prevail in this matter. And the court further finds that in every particular the welfare of the said minors has been advanced while they were in the care and custody of their mother and grandmother, Mrs. Alfred L. Hawley, and that in no particular has the defendant herein substantiated the petition filed by him herein," -- and refused to modify the decree in regard to the custody of the children, from which refusal defendant has appealed to this court.

There are some six assignments of error, which raise in effect but two legal questions: First, was the court's refusal to modify the decree an abuse of its discretion? Second, had it jurisdiction under the circumstances to award costs to the plaintiff? We consider these questions in their order. Paragraphs 3867, 3870, 3871, and 3872, Revised Statutes of Arizona of 1913, Civil Code, referring to the subject of divorce, read as follows:

"3867. During the pendency of such action the court may in its discretion require the husband to pay as alimony any money necessary for the prosecution of the action, or for attorney's fees, or for the support and maintenance of the wife, or minor children of the parties, and the court may in its discretion order that execution issue therefor."

"3870. In suits for divorce the court may make such orders concerning the care and custody of the minor children of the parties and their suitable maintenance during the pendency of the action as may be deemed proper and necessary for the well-being of the children, and in the final judgment rendered in any such suit or in any suit for annulment of the marriage, the court may make such disposition of, and provision for the minor children, as shall be deemed most expedient under all circumstances, and for the present...