Burk v. Burk, 5186

• Decision Date: 25 April 1949
• Docket Number: 5186
• Citation: 68 Ariz. 305,205 P.2d 583
• Parties: BURK v. BURK
• Court: Arizona Supreme Court

205 P.2d 583

68 Ariz. 305

BURK v. BURK

No. 5186

Supreme Court of Arizona

April 25, 1949

Appeal from Superior Court, Maricopa County; Edwin Beauchamp, Judge.

Suit for divorce by Claude E. Burk against Mary Margaret Burk wherein the plaintiff was awarded a decree of divorce granting the plaintiff custody of minor children of the parties for nine months of each year. From a decree awarding the defendant complete custody of the children, the plaintiff appeals.

Decree reversed.

Carl Tenney, of Phoenix, for appellant.

Harold R. Scoville and Charles A. Stanecker, both of Phoenix, for appellee.

Johnson Superior Judge. Udall, Stanford, Phelps, and De Concini, JJ concur.Note: Due to illness of Chief Justice ARTHUR T. LA PARADE, the Honorable J. MERCER JOHNSON, Judge, Superior Court, Pima County, was called to sit in his stead.

OPINION

Johnson Superior Judge.

On October 15, 1945, the plaintiff, Claude E. Burk, filed a complaint in the superior court of Maricopa county against the defendant, Mary Margaret Burk, seeking an absolute divorce, a division of the community property, and custody of John Taylor Burk, age 9, and Kenneth Claude Burk, age 7, minor children of the parties, and requesting the court to place the children in the custody of plaintiff's parents until his return from overseas service.

Three months later an amended complaint was filed seeking the same relief as in the original complaint except asking the court to award the minor children to him for nine months and to the defendant for three months of each year. On the same date the defendant filed a general denial to the amended complaint.

The parties at the same time filed a property settlement agreement wherein they agreed that plaintiff should have custody of the minor children for nine months of each year, and the defendant should have the children during the months of June, July, and August of each year, and asked the trial court's approval of such arrangement.

The matter was tried on January 10, 1946, upon the testimony of plaintiff and one witness, defendant having waived her right to introduce any testimony, and on said date a decree of divorce was granted to plaintiff and the property settlement of the parties was approved as to the division of the community property. Also the court approved the agreement as to the custody of the children.

Defendant on July 21, 1947, filed a petition seeking a modification of the original decree by asking for complete custody of the minor children, and after a hearing the petition was denied.

Defendant again on September 4, 1948, filed a petition for modification of the original decree of divorce seeking complete custody of the minor children, with visitorial rights to plaintiff, and after a hearing the trial court modified the decree of January 10, 1946, granting defendant custody of the minor children during the school months and the plaintiff their custody during the months of June, July, and August of each year. Plaintiff has appealed from the order of modification, assigning as error that the evidence disclosed no change in conditions or circumstances affecting the welfare of the children which would warrant a change of custody, and that such order of modification was an abuse of discretion by the trial court.

It appears the parties were married in February, 1935, and lived in Phoenix where plaintiff was employed by the police department until about November, 1943, when plaintiff left for overseas service in the Armed Forces, during which time he provided an allotment of $ 280 per month for defendant and his minor children as well as furnishing a home in Phoenix.

Shortly thereafter defendant met one Arthur A. Johnson, and in February, 1944, became employed as a saleslady for the firm he represented. She was trained in the work by Mr. Johnson and he spent considerable time at her home. Mr. Johnson was transferred to California, and defendant also requested a transfer to California. Later defendant was transferred to Nevada, and Mr. Johnson was sent along as company manager. Defendant had the children with her during all this time.

It was while defendant and Mr. Johnson were in Nevada that plaintiff instituted the action for divorce, which as above stated, resulted in the decree of divorce on January 10, 1946. On January 20, 1946, defendant married Arthur A. Johnson, and thereafter they moved to their present residence in Williston, North Dakota, where the minor children stayed during the time defendant had their custody under the agreement and decree.

Plaintiff remarried in May, 1946; was divorced in May, 1947; remarried the same woman in July, 1947; and was again divorced in August, 1948. Plaintiff at the time of the filing of the petition for modification was single, but had arrangements with his mother and father to assist in caring for the minor children while in his custody.

Section 27-811, A.C.A.1939, authorizes ...