Cornelison v. Cornelison

• Decision Date: 03 June 1933
• Docket Number: 5956
• Citation: 53 Idaho 266,23 P.2d 252
• Parties: JAMES B. CORNELISON, Respondent, v. MARY ELLEN CORNELISON, Appellant
• Court: Idaho Supreme Court

23 P.2d 252

53 Idaho 266

JAMES B. CORNELISON, Respondent, v. MARY ELLEN CORNELISON, Appellant

No. 5956

Supreme Court of Idaho

June 3, 1933

DIVORCE-CUSTODY AND MAINTENANCE OF MINOR CHILDREN-MODIFICATION OF DECREE-APPEAL AND ERROR.

1.Supreme court considers cause de novo and with powers possessed by trial court nisi, where trial court determined matter solely on affidavits (I. C. A., secs. 1-205,1-1622,16-801,31-705),

2.Motion held unnecessary, though proper, to invoke court's jurisdiction to vacate or modify provisions of divorce decree providing for custody and maintenance of minor children (I C. A., secs. 1-205, 1-1622, 16-801, 31-705).

3.Best interests of children is controlling consideration in proceeding to vacate or modify provisions of divorce decree providing for custody and maintenance of minor children (I. C. A., sec. 31-705).

4.Order modifying divorce decree as to custody and maintenance of minor children, based on affidavits stereotyped conflicting and containing violent charges and counter-charges, held unauthorized (I. C. A., secs. 1-205,1-1622,16-801,31-705).

5.Order modifying divorce decree as to custody and maintenance of minor children should rest on testimony of witnesses in open court tested by cross-examination (I. C. A., secs 1-205,1-1622,16-801,31-705).

APPEAL from the District Court of the Fifth Judicial District, for Bannock County.Hon. Robert M. Terrell, Judge.

From an order modifying a decree as to the custody and maintenance of minor children, appellant appeals.Reversed, with directions.

Decree reversed, with direction.Costs to appellant.

Merrill & Merrill, for Appellant.

Where the trial court has heard and determined the case solely on affidavits and an appeal is taken from the judgment on the ground that it is not supported by the affidavits, the appellate court will examine and weigh the evidence the same as if the case were being tried de novo.(Spofford v Spofford,18 Idaho 115, 108 P. 1054;Parsons v. Wrble,19 Idaho 619, 115 P. 8-13;Jackson v. Cowan,33 Idaho 525, 196 P. 216.)

The rule that the court will not disturb a verdict or judgment based on conflicting evidence does not apply where the evidence consists wholly of affidavits.(Keyes v. Keyes,51 Idaho 670, 9 P.2d 804;Estate of Tormey, 44 Idaho 299, 256 P. 535;Roby v. Roby,10 Idaho 139, 77 P. 213.)

W. H. Witty, for Respondent.

The interest and welfare of minor children is of paramount importance, and a modification of decree of divorce changing custody from mother to father will not be reversed unless it clearly appears that the trial court abused its discretion in that regard.(Ruthruff v. Ruthruff,52 Idaho 330, 14 P.2d 958;Olson v. Olson,47 Idaho 374, 276 P. 34;Damm v. Damm, 82 Mont. 239, 266 P. 410.)

GIVENS, J. Morgan and Wernette, JJ., concur.Budge, C. J., and Holden, J., dissent.

OPINION

GIVENS, J.

September 4, 1924, appellant was granted a divorce from respondent and given the custody of Hazel, then three, and Eugene, then eight months, and $ 30 a month for their support.

July 7, 1932, respondent sought by a modification of the decree, custody of the two children named.Appellant resisted, and asserted that ten monthly payments were delinquent.Whereupon respondent sought an additional modification of the decree as to the payments.

The trial court determined the matter solely on affidavits, consequently this court approaches and considers the cause de novo (Keyes v. Keyes,51 Idaho 670, 677, 9 P.2d 804, and cases cited), and with the powers possessed by the trial courtnisi.(Gardner v. Blaine County,15 Idaho 698, 99 P. 826.)

The court generally may "reverse, affirm or modify any order or judgment appealed from, and may direct the proper judgment or order to be entered, or direct a new trial or further proceedings to be had."(Sec. 1-205, I. C. A.)

Jurisdiction to provide for the custody and maintenance of the minor children mentioned in this proceeding is to be found in Idaho Code Annotated, sec. 31-705, which is as follows:

"In any action for divorce the court may, before or after judgment, give such direction for the custody, care and education of the children of the marriage as may seem necessary or proper, and may at any time vacate or modify the same."

We are unable to find any procedure, prescribed by our code, for vacating or modifying a provision in a decree of divorce for the custody and maintenance of minor children of a marriage thereby dissolved.

In this state the jurisdiction of the court to vacate or modify the provisions of a decree of divorce providing for the custody and maintenance of minor children has, customarily, been invoked by motion, the facts being presented in some cases by affidavit, in others by oral testimony, and sometimes both of these means are adopted.Section 31-705 does not require a motion, though that is not improper, to invoke the jurisdiction of the court to vacate or modify such a provision in a decree, and the means whereby the court shall satisfy itself of what will be to the best interests of the children, which is the controlling consideration, is not prescribed.

Section 1-1622 is applicable in this case.It provides:

"When jurisdiction is, by this code, or by any other statute, conferred on a court or judicial officer all the means necessary to carry it into effect are also given; and in the exercise of the jurisdiction if the course of proceedings be not specially pointed out by this code, or the statute, any suitable process or mode or proceeding may be adopted which may appear most conformable to...