Crowe v. Crowe

• Decision Date: 29 March 1946
• Docket Number: 17410.
• Citation: 65 N.E.2d 645,116 Ind.App. 534
• Parties: CROWE v. CROWE.
• Court: Indiana Appellate Court

65 N.E.2d 645

116 Ind.App. 534

CROWE v. CROWE.

No. 17410.

Appellate Court of Indiana, in Banc.

March 29, 1946

Appeal from Lake Superior Court, No. 3; Fred A. Egan, Judge.

Oscar B. Thiel, of Gary, for appellant.

Stiles & Bayor, of Gary, for appellee.

ROYSE Presiding Judge.

Prior to September 16, 1937, the parties hereto were husband and wife. They had four children. On said last mentioned date appellant was granted a divorce from appellee. The court gave appellee custody of two children, Ruth Elizabeth who was then six years old, and Robert who was then two years old. Appellant was granted custody of the other two children. Appellant was ordered to pay $30 per month for the support of the children placed in the custody of appellee.

On or about June 5, 1945, appellee filed her motion to modify the order of September 16, 1937, by requiring appellant to pay $100 per month for the support of said two children. In said motion she averred that since said decree was entered appellant's income had increased from $150 per month to $1500 per month. It was further averred that as the children grew older it required a larger sum to adequately support them. To this motion appellant filed what he denominated a response and cross-motion to modify the original decree, in which he alleged appellee did not require more than $30 per month to support said children and that she had removed said children from the jurisdiction of the Court to the State of Arkansas. He further alleged appellee had persistently attempted to poison the minds of said children against him that the daughter Ruth Elizabeth has expressed a desire to live with her father. He sought custody of said children and relief from further obligation to pay appellee for their support.

Upon the issues thus formed the trial court heard evidence and at the conclusion thereof entered its judgment, the pertinent portion of which is as follows:

'* * * It is further ordered, adjudged, and decreed by the court that the order heretofore entered herein on September 16 1937 be and the same is hereby modified and the plaintiff is ordered to pay into the office of the clerk of this court, the sum of Eighty-five ($85.00) Dollars, each and every month commencing as of this date said sums to be paid to the defendant for the support of Ruth Elizabeth Crowe and Robert Crowe. It is further ordered, adjudged and decreed that the plaintiff have the care and custody of Ruth Elizabeth Crowe and Robert Crowe from July 1, 1945 to September 1, 1945, and that he have such care and custody each year hereafter from June 15th to September 1st, and that during the time he has such custody, the order for support of said minor children be and the same is suspended, during the time as such minor children are in the care and custody of plaintiff during each summer. It is further ordered, adjudged and decreed that the plaintiff pay the sum of Fifty ($50.00) Dollars for the use of defendant's attorney, on or before 60 days from the date of this order. And the court now being advised that the plaintiff has paid the defendant the sum of Sixty ($60.00) Dollars for transportation of said minor children, Ruth Elizabeth Crowe and Robert Crowe, from Mountain Home, Arkansas to Gary, Indiana. It is now ordered, adjudged and decreed that the defendant pay the traveling expenses for said minor children from Mt. Home, Arkansas to Gary, Indiana, on July 1, 1945, and also pay the expenses of their return to Mt. Home, Arkansas, on September 1, 1945.

'All of which is now ordered, adjudged, and decreed this 26th day of June, 1945.'

On proper assignment of error appellant makes three contentions here: (1) The trial court erred in overruling his motion to modify the original decree and give him custody of the two children; (2) the court erred in increasing the original support order from $30 to $85; (3) the court erred in awarding appellee's attorney any attorney's fees.

In support of his first contention appellant asserts a father is entitled to the custody of his minor children and should not be compelled to support them in a foreign jurisdiction. He also contends that the children being wards of the Court they must be kept within the jurisdiction of the court; that it is against public policy to order a father to support his minor children in a foreign jurisdiction unless there be compelling and urgent reason therefor. Finally he asserts that where a parent has been given custody of a child in divorce proceedings such custody will be taken away if such parent attempts to poison the mind of the child against the other parent.

It is the well-settled rule of this jurisdiction that in controversies of this nature the right of the father to the custody of his child is always subject to the paramount consideration of the welfare and best interests of the child. Johnson et al. v. Smith et al., 1932, 203 Ind. 214, 176 N.E. 705; Duckworth v. Duckworth et al., 1932, 203 Ind. 276, 179 N.E. 773. The reason for this rule is based upon the permise that children are not chattels but intelligent moral beings, and as such their welfare and happiness are the first consideration of the State. 17 Am.Jur. (Divorce and Separation), § 683, p. 517.

So far as we have been able to ascertain the question of whether a court of this state in a divorce proceeding has the authority to place the custody of children of the divorced parents with the mother who resides out of the state and charge the father with their support, has not been passed upon either by this court or the Supreme Court. The rule, that the welfare and best interests of the child is of paramount importance, is not limited by state lines, according to the weight of authority of other jurisdictions. Hersey v. Hersey, 1930, 271 Mass. 545, 171 N.E. 815, 70 A.L.R. 518; Allen v. Allen, 1940, 239 Ala. 116, 194 So 153; Williams v. Williams, 1943, 110 Colo. 473, 135 P.2d 1016; Kane v. Kane, 1927, 241 Mich. 96, 216 N.W. 437; Elies v. Elies, 1941, 239 Wis. 60, 300 N.W. 493; Crummer v. Crummer, 1932, 44 Wyo. 1, 7 P.2d 223; Kirby v. Kirby, 1923, 126 Wash. 530, 219 P. 27; Duncan v. Duncan, 1943, 293 Ky. 762, 170...