Crow v. Crow

• Decision Date: 10 May 1966
• Docket Number: Nos. 4282,4354,s. 4282
• Parties: Beatrice H. CROW v. James W. CROW.
• Court: Hawaii Supreme Court

Page 82

414 P.2d 82

49 Haw. 258

Beatrice H. CROW v. James W. CROW.

Nos. 4282, 4354.

Supreme Court of Hawai'i.

May 10, 1966.

Syllabus by the Court

1. In any custody proceeding, the welfare of the minor children is of paramount importance.

2. The determination of the care, custody and control of minor children in a divorce proceeding is peculiarly within the wide discretionary power of the trial court.

3. Determination of custody of minor children will not be disturbed unless there has been a manifest abuse of discretion.

4. Under section 324-37, R.L.H.1955, the trial judge may exercise reasonable discretion in dividing the marital property in such proportion as shall appear just and equitable.

5. The division of marital property will not be disturbed unless abuse of discretion is clearly shown.

6. The trial court in its discretion may limit the hearing on a motion to reopen to matters set forth in the affidavit supporting the motion and denial of a request by movant to call five witnesses, who could have been produced during the trial of the case in chief but were not, is a matter within the discretion of the trial judge which will not be disturbed except in case of abuse.

7. When a judgment of contempt does not set forth the particular circumstances of the offense, which is required by section 269-5, R.L.H.1955, the contempt order cannot stand and must be vacated.

Ralph E. Corey, Honolulu (Clark & Corey, Honolulu, on the brief), for appellant.

Robert G. Hogan, Honolulu (Hogan & Howell, Honolulu, on the brief), for respondent.

Before CASSIDY, ^* WIRTZ, LEWIS and MIZUHA, JJ., and Circuit Judge KITAOKA assigned by reason of vacancy.

MIZUHA, Justice.

On August 22, 1961, the trial court granted divorces to both the appellant-wife (libellant, cross-libellee) and the appellee- husband (libellee, cross-libellant). The decree awarded custody of one child Jerry, age 9, to appellant, and the custody of the parties' other child Lynn, age 14, to appellee and provided for the division and distribution of marital property. The appeal from this decree, herein designated as No. 4282, is discussed in Part I.

On December 6, 1961, several months after the final divorce decree was filed and while No. 4282 was pending before this court, the appellee filed with the First Circuit Court a 'Motion for Order to Show Cause' supported by four affidavits, requesting an 'Order to Show Cause', inter alia, why appellant should not be adjudged in contempt of the August 22, 1961 divorcedecree, and why the court shouldn't transfer custody of Jerry Crow, the younger child to the appellee. This order to show cause, issued by the First Circuit Court on December 6, 1961 was served personally on appellant at her place of employment on December 12, 1961. The appellant moved to strike it, urging as a primary ground that the trial court lacked jurisdiction to issue such an order pending the appeal. She then petitioned this court for a writ of prohibition on the ground that the appeal suspended the trial court's jurisdiction over the parties and subject matter of the suit. The petition was summarily denied by this court in an order filed June 5, 1962, and on the same day this court also denied appellee's motion (a) to dismiss the appeal, (b) to affirm the decree of divorce, (c) to affirm the order denying appellant's motion to reconsider the final decree of divorce, and (d) to affirm an order re order to show cause entered November 14, 1961, relating to rights of visitation. The Court found that there was no appeal before it concerning the order entered November 14, 1961.

The appellant and minor child in her custody left for a vacation on the mainland on June 20, 1962 ostensibly for two weeks after notifying appellee of her intention; on August 10 she notified the trial court that her health, financial condition and employment circumstances prevented her from appearing at the hearing on the change of child custody. She did not ask the court for an extension of time or a postponement of the hearing, remaining silent on this matter; however she did indicate that the trial court could go ahead and sell one of the marital holdings with her consent.

On September 4, 1962, appellant's attorney moved to continue the hearing on the matter of modifying child custody, which motion was denied. Hearings were held on September 4, 14, 27, and 28, 1962 on the issues of contempt of court, modification of child custody and property distribution. The appellant was not present at the hearings although she knew about them, and was represented instead by her attorney. On October 9, 1962 the Circuit Court filed an order adjudging appellant in contempt, amending the decree of divorce and directing enforcement. The order read in part:

'1. That libellant be and she is hereby found and adjudged in contempt of this Court in that she wilfully failed to obey the orders of this Court relating to the visitation rights given therein to libellee; that the imposition of sentence is deferred until such time as the libellant is personally before this Court;

'2. That the care, custody and control of the minor child, JERRY CROW, which in the Decree of Divorce entered on August 22, 1961 was awarded to libellant, be and the same is hereby transferred from libellant to libellee (JAMES W. CROWN); * * *.'

The order further set out the manner in which the change of custody of Jerry was to be made. The appeal from this order. herein designated as No. 4354, is discussed in Part II of this opinion.

On November 16, 1962, the court filed another order which principally called for the posting of a supersedeas bond to stay the execution of the change of custody of Jerry while the appeal of No. 4354 was pending. The appellant complied under protest. Appellant attempted to appeal from this order by filing a so-called 'Amendment to notice of Appeal' but we conclude there is nothing before us in regard to this order of November 16, 1962.

PART I-No. 4282

Appellant's first contention that the trial court erred in awarding custody of Lynn Crow, age 14, to the appellee is without merit. The determination of the care, custody and control of a minor child in a divorce proceeding is peculiarly within the wide discretionary power of the trial court whose paramount consideraton is the welfare of the minor child. The award of custody will not be disturbed by this court since there has been no manifest abuse of discretion. Application of Burns, 49 Haw. 20, 31, 407 P.2d 885, 892; Yee v. Yee, 48 Haw. 439, 442, 404 P.2d 370, 372; Estrella v. Estrella, 43 Haw. 210, 212-214; Pacleb v. Pacleb, 42 Haw. 300.

We also do not agree with appellant's second contention that the trial court 'committed reversible error in arbitrarily and adversely dividing and distributing' the marital property of the parties. The division of marital property involves the interpretation and application of section 324-37, R.L.H.1955, which reads in part:

'Upon granting a divorce the judge may * * * finally divide and distribute the estate, real, personal, or mixed, whether community, joint, or separate, in such proportion as shall appear just and equitable, having regard to the respective merits of the parties, to the ability of the husband, to the condition in which they will be left by such divorce, to the burdens imposed upon it for the benefit of the children of such marriage, and all other circumstances of the case; * * *. Such decree, as to the * * * division of property shall be final and conclusive upon both parties subject only to the right to appeal as in civil cases, * * *.'

The trial court divided property having a total estimated value of $67,641.63 as follows: To appellant $31,743.63, ¹ to appellee $35,903.00. Appellant correctly states in her brief that the trial court has 'broad discretion as to what portion of the property shall be awarded to each spouse,' and 'although there is no fixed rule for determining the amount of property to be awarded to each, the division of property and the exercise of discretion by the Court is guided by a number of factors, all considered with a primary object of making an equitable and just division between the spouses.' After a careful consideration of the record before us, the subsequent change in custody of Jerry Crow from the appellant to appellee affirmed in No. 4354, infra, ² and the specific factors enumerated in section 324-37, R.L.H.1955, we find that the division of the marital property was just and equitable, and within the reasonable discretion of the trial court. See Richards v. Richards, 44 Haw. 491, 508, 355 P.2d 188, 198. The division will not be disturbed unless an abuse of discretion is clearly shown. Harrah v. Harrah, 196 Kan. 142, 409 P.2d 1007; Rackham v. Rackham, 119 Utah 593, 601, 230 P.2d 566, 570; Kraus v. Kraus, Colo., 411 P.2d 240, 241. It may be noted here that when this court determines that the division of marital property is 'in such proportion as shall appear just and equitable' as provided for in the statute, there need not be any detailed item by item analysis and justification on the merits of the division. See Saint v. Saint, 196 Kan. 330, 411 P.2d 683, 689.

Appellant's third specification of error reads: 'The trial Court erred, as a matter of law, in refusing to grant to Appellant the right and opportunity, on July 17, 1961, at a hearing held before the Court, to call several corroborating witnesses on her behalf and to adduce testimony and evidence on her behalf from these witnesses.'

The hearing before the trial court on July 17, 1961 was on a motion to reopen. The trial court granted the motion but limited the hearing to 'matters set forth in the affidavit' supporting the motion to reopen and...