Cope v. Cope, 12353

• Decision Date: 21 March 1978
• Docket Number: No. 12353,12353
• Citation: 98 Idaho 920,576 P.2d 201
• Parties: Betty E. COPE, Plaintiff-Respondent, v. Gerald Vern COPE, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 201

576 P.2d 201

98 Idaho 920

Betty E. COPE, Plaintiff-Respondent, v. Gerald Vern COPE, Defendant-Appellant.

No. 12353.

Supreme Court of Idaho.

March 21, 1978.

J. Charles Blanton and Loren C. Ipsen of Moffatt, Thomas, Barrett & Blanton, Boise, for defendant-appellant.

Roger L. Williams of Schiller, Williams & Trabert, Nampa, for plaintiff-respondent.

DONALDSON, Justice.

The parties in this action were divorced on May 20, 1970. The plaintiff-respondent, Betty Cope, was awarded custody of the two minor children, Rick, born November 1, 1960, and Kelly, born March 30, 1963. In November of 1970, the decree was modified giving the defendant-appellant, Gerald Cope, custody of Rick. In June 1971, the decree was again modified giving Mr. Cope custody of Kelly also.

Mrs. Cope remarried in 1971 and Mr. Cope has remarried twice since the parties' divorce in 1970.

In May 1976, Mrs. Cope petitioned the court requesting that the June 1971 decree be modified to give her custody of Kelly. A hearing was held on August 20, 1976. On August 25, 1976, the district court informed the parties by way of a letter decision that the decree would be modified to give Mrs. Cope custody of Kelly. The district court indicated in its letter that the change in custody was in Kelly's best interest. The district court also stated in its letter that Mr. Cope would be ordered to pay $100 per month child support. Mrs. Cope's attorney was directed to prepare findings of fact and conclusions of law reflecting the district court's letter decision.

Mr. Cope appeals the order and judgment of the district court contending that the district court abused its discretion by modifying the custody award and by requiring him to pay $100 per month child support.

Mr. Cope claims the district court abused its discretion by modifying the custody award because there was insufficient evidence to establish a material, substantial, and permanent change in circumstances to justify modification. Numerous authorities indicate that such a change in circumstances is a prerequisite to any custody award modification. Adams v. Adams, 93 Idaho 113, 456 P.2d 757 (1969); Tomlinson v. Tomlinson, 93 Idaho 42, 454 P.2d 756 (1969); Bryant v. Bryant, 92 Idaho 76, 437 P.2d 29 (1968); Embree v. Embree, 85 Idaho 443, 380 P.2d 216 (1963); Fish v. Fish, 67 Idaho 78, 170 P.2d 802 (1946).

Although the threshold question in a change of custody suit is whether there has been a "change in circumstances," the paramount question in any custody suit, including a change of custody suit, is how will the "best interests of the child" be served. Poesy v. Bunney, 98 Idaho 258, 561 P.2d 400 (1977). In Poesy v. Bunney, supra, this Court carefully analyzed these two rules of law and placed them in proper perspective. After acknowledging the importance of the "change in circumstances" principle, it was noted:

The tendency is to search for some greatly altered circumstance in an attempt to pinpoint the change called for by the rule. Thus, the emphasis is placed on defining some change, and making that change appear, in itself, to be material, permanent and substantial. This focus is misleading. The important portion of the standard is that which relates the change in conditions to the best interest of the child. The changed circumstance standard was designed, as a matter of policy, to prevent continuous re-litigation of custody matters. That policy goal, however, is of secondary importance when compared to the best interests of the child, which is the controlling consideration in all custody proceedings. (citations omitted) The court must look only for changes of condition or circumstance which are material, permanent and substantial, but also must thoroughly explore the ramifications, vis-a-vis the best interest of the child, of any change which is evident. What may appear by itself to be a small and insignificant change in circumstances may have significant effects insofar as children are concerned. Id. 561 P.2d at pp. 403-404.

The "change in circumstances" in this case was significant and was sufficient to warrant a modification of the custody award. The record discloses that the environment in both Mr. Cope's and Mrs. Cope's homes had changed since the 1971 decree. In addition, Kelly had also changed. Kelly had grown older and at the time the modification petition was filed she was thirteen years old and experiencing the physical and emotional changes a young woman undergoes while attaining maturity. As a consequence, Kelly's needs and desires had also changed. Kelly testified at trial that she wanted to live with her mother. The district court could not ignore these desires. As this Court noted in Poesy :

The desire of the child becomes particularly important as the child grows older and more intelligent. With age comes an increased capacity on the part of the child to evaluate his own circumstance and determine what living situation is optimal. Also, with age comes a decreased ability to impose a custody order on a child which is contrary to the desires of the child. Id. 561 P.2d at 404.

The district court concluded that Kelly's best interests would be served by granting Mrs. Cope custody. There was sufficient evidence to support his finding. The question of child custody is vested in the sound discretion of the district court and this...