Christensen v. Christensen, 10886

• Decision Date: 02 September 1971
• Docket Number: No. 10886,10886
• Parties: Howard G. CHRISTENSEN, Plaintiff and Respondent, v. Rose Ardith CHRISTENSEN, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 62

190 N.W.2d 62

85 S.D. 653

Howard G. CHRISTENSEN, Plaintiff and Respondent, v. Rose Ardith CHRISTENSEN, Defendant and Appellant.

No. 10886.

Supreme Court of South Dakota.

Sept. 2, 1971.

R. A. Smiley, Belle Fourche, for defendant and appellant.

Howard G. Christensen, pro se.

HANSON, Judge.

This is an appeal by Rose Christensen from an order modifying a decree of divorce with reference to child custody, alimony, and child support payments. The plaintiff, Howard G. Christensen, did not file a brief and was not represented by counsel on appeal.

Rose and Howard were married on May 14, 1947. Seven children were born to this union, namely, Gerald, Howard, Rodney, Danny, Cinda, Wendy, and Timothy. In May 1967 Howard commenced an action for divorce. Based upon a Stipulation and Property Settlement Agreement the court entered a decree of divorce granting defendant wife custody of Cinda, Wendy, Timothy and Danny. Plaintiff was given custody of the three older children. In addition, plaintiff was obligated to pay defendant alimony in the amount of $75 per month and child support in the amount of $150 per month.

in September 1969 plaintiff was ordered to show cause why he should not be held in contempt of court for failure to pay delinquent alimony and child support payments in the total amount of $2,250. Thereafter various responsive and rebuttal affidavits were filed and hearings held culminating in an order filed September 25, 1970 amending the divorce decree in the following particulars: (1) the care, custody, and control of Cinda was granted to the plaintiff, Howard Christensen, (2) child support payments were reduced to $100 per month, and (3) alimony or separate maintenance payments were eliminated.

In the course of the proceedings several prior interim orders were entered by the court. Among them was an order dated October 10, 1969 directing the Division of Services Administration, Department of Public Welfare to conduct a complete inquiry, investigation and report of the persons and respective homes of the parties, including incomes and finances. This order was entered upon the court's own motion.

A full investigation was made by a child welfare worker who rendered an extensive report in writing to the court. Her report was not filed. She did not testify as a witness and the report was not included in the settled record. However, copies marked 'CONFIDENTIAL. NOT TO BE SHARED WITH PERSONS INVOLVED' were furnished to counsel for both parties.

After the report was rendered a hearing was held on May 28, 1970 at which the court announced its intention to enter an interim order allowing Cinda to spend two months during the summer of 1970 with her father; temporarily reducing child support payments during the visitation period; the question of Cinda's permanent custody would be reexamined after two months; and finding plaintiff not in contempt for failure to pay past delinquent alimony and child support payments. Defendant objected to entering such order as there was no evidence to base it upon except the Child Welfare Report. The court indicated at the time its findings were based 'substantially on the report'.

It is well...