Bryant v. Bryant

• Decision Date: 04 May 1960
• Docket Number: No. 7879,7879
• Citation: 102 N.W.2d 800
• Parties: Emmett Phillips BRYANT, Plaintiff and Appellant, v. Annie Lucille BRYANT, Defendant and Respondent.
• Court: North Dakota Supreme Court

Page 800

102 N.W.2d 800

Emmett Phillips BRYANT, Plaintiff and Appellant, v. Annie Lucille BRYANT, Defendant and Respondent.

No. 7879.

Supreme Court of North Dakota.

May 4, 1960.

Syllabus by the Court

1. When a divorce is granted, the trial court has continuing jurisdiction with regard to the custody, care, education, and welfare of the minor children of the marriage.

2. The trial court in a divorce action should award the custody of minor children of the marriage in accordance with the best interests of such children, and such award of custody is subject to modification as the best interests of the children may require.

3. The question of custody of the children is within the sound, judicial discretion of the trial court, and the trial court's decision will not be interfered with on appeal except in case of a clear abuse of discretion.

4. A party seeking modification of a divorce decree awarding custody of minor children must show a change of circumstances or new facts which were unknown to the moving party at the time the decree was entered.

5. Courts invested with jurisdiction and power to grant a divorce, and to award alimony and support money, have the power to modify the amount to be paid under the decree whenever circumstances of the parties have materially changed.

6. The trial court should be more reluctant to order a modification of a decree as to payments for support of children where it is based on agreement than where the decree is based on the finding of the court as to ability to pay.

7. Where a party in a divorce action fails or refuses to comply with the order or decree of the trial court regarding support payments for minor children, without a showing that such failure to comply with the order or decree was justified and was not a deliberate refusal to comply therewith, such party may not invoke the favor of the court to procure modification of the payments required by such order or decree which he has refused or failed to obey.

8. The provisions of a decree of the trial court in a divorce case are final until modified for changed conditions.

9. The Supreme Court and the lower court from which an appeal is taken in a divorce action have concurrent original jurisdiction after appear to award attorney fees and expenses for prosecuting the appeal.

10. The appellate court will not interfere with the sound exercise of discretion by the trial court in making an award for prosecuting or defending a divorce action, in the absence of a showing of abuse of discretion.

Rausch & Chapman, Bismarck, for plaintiff and appellant.

Duffy & Haugland, Devils Lake, for defendant and respondent.

STRUTZ, Judge.

In the above-entitled proceeding we have under consideration two appeals. The first appeal is from an order of the district court denying a motion of the plaintiff and appellant for a modification of the divorce decree entered in this action relative to (a) custody of the children, (b) amount of support and alimony to be paid by the appellant, and (c) change of beneficiary under certain insurance policies. The second appeal is from an order of the district court dated February 16, 1960, ordering the appellant to pay to the respondent the sum of $550 for attorney fees and expenses on the motion for modification and for preparation of brief and argument in the Supreme Court of this appeal. The order requiring the appellant to pay such attorney fees and expenses was signed by the trial court after the appeal to this court from the order denying modification of judgment had been perfected.

By stipulation of the parties, it was agreed that these two appeals be heard and considered together.

Briefly stated, the facts are as follows:

The appellant was the plaintiff in a divorce action commenced by service of summons and complaint on January 27, 1957. A property-settlement agreement was signed by both of the parties in which it was agreed, among other things, that the custody of the oldest child, a daughter, should remain with the plaintiff and that the care and custody of the three younger children, two daughters and one son, should be granted the mother, who was defendant in the divorce suit, with rights of visitation. The agreement also provided that the beneficiary of certain life insurance policies in which the defendant was sole beneficiary should be changed so as to make the defendant and the four children equal beneficiaries thereunder.

The agreement further provided that the plaintiff-husband pay to the defendant-wife, as alimony, the sum of $200 per month plus $100 per month for each of the three children whose custody was to be in the defendant, such alimony to be paid until death or remarriage of the defendant and such support money for the children to be paid until each child reaches the age of eighteen years or until death of such child, whichever event occurs first. This settlement agreement was drawn by the plaintiff's own attorneys.

The trial court granted a divorce to the plaintiff and made the agreement of the parties a part of the decree. Thereafter, the plaintiff paid the amount which he had agreed to pay, and as required under the decree, for a period of three months. Then, without taking any steps to secure a modification of the decree by having such amount reduced and the decree modified, the plaintiff took it upon himself to reduce the amount payable from a total of $500 per month to $400 per month. At the time of the argument of these appeals in this court, the plaintiff's default of payments under the decree totaled in excess of $4,000.

Under the provisions of the decree for right of visitation granted to the plaintiff and appellant, he obtained the custody of the children whose custody had been awarded to the defendant in the divorce action, for the summer of 1959. When the time came for the children to be returned to the defendant, the plaintiff commenced proceedings to have the judgment modified in the following respects:

1. That the judgment be modified as to custody of the two daughters awarded by the decree to the defendant, and that such custody be awarded to the plaintiff.

2. That, in the event the judgment was not modified as to custody, the amounts to be paid by the plaintiff to the defendant for alimony and for support and maintenance of the children be reduced from $200 alimony to $150 and from $100 support and maintenance for each child to $50.

3. That the beneficiaries under the insurance policies which, by the decree, made the defendant and the four children equal beneficiaries, be changed so that the children be named as the sole beneficiaries under such insurance policies.

Three main issues are raised by the appellant on this appeal:

1. The right of the appellant to have the decree of divorce modified as to the custody of the two daughters who, by the agreement between the parties and by the decree, had been awarded to the respondent.

2. Modification of the decree with reference to the amounts to be paid as alimony and support money for the minor children and in changing beneficiaries of the insurance policies.

3. The validity of the order of the trial court directing the plaintiff and appellant to pay to the defendant and respondent the sum of $550 for attorney fees and expenses in preparing the brief and arguing the appeal in this court, which appeal was taken by the appellant from the order denying a modification of the decree.

When a divorce is granted, the trial court has continuing jurisdiction with reference to the custody, care, and education of the minor children. Section 14-0522, N.D.R.C.1943; Eisenbarth v. Eisenbarth, N.D., 91 N.W.2d 186; Olson v. Olson, 77 N.D. 444, 43 N.W.2d 689.

In such divorce proceedings the trial court should always award the custody of the children in accordance with the best interests of the children, and such award of custody is always subject to modification as the best interests of the children may require. In other words, the rights and welfare of the children are of first consideration, and those rights are paramount to the rights of the parents to custody, the interests of the parents being important only to the extent that their interests bear on the question of what is best for the children. Sjol v. Sjol, 76 N.D. 336, 35 N.W.2d 797; Miller v. Miller, 76 N.D. 558, 38 N.W.2d 35; Hedman v. Hedman, N.D., 62 N.W.2d 223.

The trial court in this action, on the written stipulation drawn by the appellant's attorneys and signed by both parties as to custody, found, as one of the findings of fact in the case, that the respondent 'is a fit and proper person to have custody' of the children whose custody appellant now seeks to acquire. After specifically stipulating as to such custody and having the court decree that the custody be as stipulated, the appellant now argues that he was forced to stipulate such custody because if there had been a contested divorce he would have lost his position of employment. The appellant's argument amounts to a claim that the respondent was unfit to have the custody of the children at the time of the divorce decree but, in order to get his divorce, the appellant was willing to enter such stipulation and deliberately mislead the trial court. Not only did he mislead the trial court, if his present contentions are true, but he also misled his own attorneys who drafted the stipulation as to custody. If the appellant stipulated to grant the custody of the three small children to the respondent, knowing that the mother was not fit as he now claims, there is a serious question as to whether the appellant himself is fit to have the custody of the children. Having obtained his divorce, and the time for appeal from such divorce decree having expired and the appellant having remarried, he now says that he should not have agreed to placing the custody of the three children in the respondent.

Let us look at the evidence which the appellant produced to show that the custody of the...