Butcher v. Butcher

• Decision Date: 08 August 1961
• Docket Number: No. 2999,2999
• Citation: 363 P.2d 923
• Parties: Suzanne Rabaud BUTCHER, Appellant (Plaintiff below), v. Clarence Sellers BUTCHER, Appellee (Defendant below).
• Court: Wyoming Supreme Court

Page 923

363 P.2d 923

Suzanne Rabaud BUTCHER, Appellant (Plaintiff below), v. Clarence Sellers BUTCHER, Appellee (Defendant below).

No. 2999.

Supreme Court of Wyoming.

Aug. 8, 1961.

Mayne W. Miller and Paul Barber (of Barber & Miller), Casper, for appellant.

Robert R. Rose, Jr., Casper, for appellee.

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

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

Plaintiff, Suzanne Rabaud Butcher, brought this action for divorce against Clarence Sellers Butcher on July 23, 1959, at Casper, Wyoming. She alleged that plaintiff and defendant were married in Paris, France, on December 25, 1947; that four children were born to this marriage, namely, William Louis, aged 10, Anita Marie, aged 9, Jane Michele, aged 6, and Jacques Yves, aged 5; that plaintiff is a proper person to have custody of the children; that defendant offered such indignities to the plaintiff as to render plaintiff's condition intolerable; and that defendant is fully capable of earning an income sufficient to pay for the support of the plaintiff and the children and to pay plaintiff's attorney's fees in this matter. She asked for an absolute divorce and for the custody of the children.

The defendant filed an answer in the case, admitting the marriage of the parties but denying the allegation as to indignities offered to the plaintiff. As a counterclaim, defendant alleged that the plaintiff had offered such indignities to the defendant as to render his marital condition intolerable and that plaintiff is able to support herself and maintain her own livelihood. He asked for an absolute divorce and that the custody of the minor children by awarded to him with reasonable visitation on the part of the plaintiff. The case was tried to the court in April 1960. At the close of the trial the court granted an absolute divorce to the defendant and awarded the care and custody of the children to him. The court made careful provision as to the care of the children, providing in substance that in addition to reasonable visitation to the children the plaintiff should have care and custody of them during their summer vacations. The court also awarded plaintiff attorney's fees of $350 and alimony of $5,000 payable at the rate of $100 a month. From that judgment the plaintiff has appealed to this court. The parties will generally be referred to herein as in the court below. The errors assigned herein are, first, that the court should have allowed the custody of the children to the plaintiff instead of to the defendant and, second, that the court should have granted the divorce to the plaintiff instead of to the defendant.

It appears herein that the plaintiff had been married previously to a musician but was divorced prior to the marriage to the defendant. Plaintiff and defendant, after being married, moved to a farm some twenty miles north of Gillette, Wyoming. They first lived in a small house with no modern conveniences, but additions were made to the house and it was made modern. About two years later they moved into a larger house. This house is modern and has electricity, water, telephone and all modern conveniences. Other facts will be stated herein later.

1. Plaintiff complains that the care and custody of the children were awarded to the defendant in the manner above mentioned and claims that she should have their care and custody. Counsel relies in the main upon the rule that ordinarily the care and custody of young children should be awarded to the mother as held, for instance, in Ramsey v. Ramsey, 76 Wyo. 188, 301 P.2d 377; Douglas v. Sheffner, 79 Wyo. 172, 331 P.2d 840; and Stirrett v. Stirrett, 35 Wyo. 206, 248 P. 1. That rule, however, is not always controlling, as noted hereafter.

One of the main factors to be considered herein is the financial and economic condition of the respective parties because of the fact that the chidren must be fed and clothed. From July 1959 to April 1960 the plaintiff had the custody and care of the children and took care of them well except that the youngest boy, aged 5, was with his father most of the time. The main reason that plaintiff was able to take care of the children in a proper manner during that time was because the court had awarded to her $400 per month to be paid by the defendant and which was paid to her. Defendant paid a number of additional items in support of his children. Plaintiff herself gave piano lessons and earned about $350 a month. That amount was somewhat less during the summer when children were on vacation. Plaintiff bought a house in Casper for some $16,000 without making any down payment. She bought a Buick automobile on which there was due $1,000. Such bought a piano at a cost of about $4,000 and a mink coat costing $1,000. She apparently makes installment payments on these various items. Thus it would seem that after making her installment payments there would be very little money left to feed and clothe the children properly, thus inducing her to make continual demands upon the defendant to furnish more and more money. It appears herein that while during some of the years the defendant had a very good income, at the time of the trial his net income was small. The land on which he lives comprises 5,000 acres of deeded land and some land leased from the state. The farm and the buildings are owned by defendant's stepfather, William A. Hensley. Defendant has no interest in the farm. All the income that he has consists of one-half of the increase of livestock furnished by his stepfather. He owed considerable money at the time of the trial. William W. Smith, the banker at Gillette with whom the defendant does business, testified that if the defendant were called upon to pay his debts he, the defendant, would not come out even but would still be owing money to the bank. The stepfather has guaranteed the payment of some 26,000 which the defendant owes and has also signed a note with defendant for an additional $1,000. He testified that he could not lend additional help but, given time and opportunity, defendant might ultimately become solvent. In view of these facts, the trial court had the right to conclude that the defendant would not be able to support himself and give any great amount of money to the plaintiff for the care and support of the children, probably on the theory that generally it is considerably cheaper to support children on a farm than it is in a city. It is held in Burke v. Burke, 267 Ky. 734, 103 S.W.2d 291, that the custody of children may be awarded to the father when it appears that he will be able to provide a suitable home for them but will not be able to support himself and furnish an allowance to the mother which will enable her to properly take care of the children.

In addition to this it appears herein that the plaintiff is not stable emotionally. She takes tranquilizers continually. She had a nervous breakdown some time before she moved to Casper and was in Cheyenne for a period of time for treatment for her physical and mental condition. Plaintiff stated that she came to the United States because she thought she would be able to go back home to Paris; that otherwise she would not have left...