Culbertson v. Culbertson

• Decision Date: 09 April 1975
• Docket Number: No. 7378,7378
• Citation: 533 P.2d 768,91 Nev. 230
• Parties: Lura CULBERTSON, Appellant, v. David CULBERTSON, Respondent.
• Court: Nevada Supreme Court

Page 768

533 P.2d 768

91 Nev. 230

Lura CULBERTSON, Appellant, v. David CULBERTSON, Respondent.

No. 7378.

Supreme Court of Nevada.

April 9, 1975.

Daniel R. Walsh, Carson City, for appellant.

Walther, Key & Avansino, Reno, for respondent.

OPINION

BATJER, Justice:

On February 10, 1972, judgment was entered dissolving the marital status of the parties. The judgment awarded custody of the parties' four minor children to appellant and effected a property division. Although no formal notice of entry of judgment was served upon appellant, counsel for respondent, on February 15, 1972, did direct a letter to appellant enclosing a check made payable to her order for the sum of $1,209.01. He characterized his action as 'required by the Judgment and Decree entered in the Fifth Judicial District Court in and for the County of Mineral on February 10, 1972,' and he further stated, 'Acceptance by you of this check shall constitute total discharge of David A. Culbertson's obligation to pay you cash under such Judgment and Decree.' The check was immediately cashed by appellant and the proceeds retained by her.

In December of 1972, respondent filed a motion for an order to show cause why appellant should not be held in contempt of the original judgment and relieved of custody of the minor children. On May 1, 1973, after a hearing, the trial court concluded that appellant was in contempt of the original judgment ¹ and ordered that judgment to be amended to transfer custody of the minor children to respondent.

Appellant now seeks to appeal not only from that amended judgment but also from the judgment entered on February 10, 1972.

1. Had respondent served and filed a formal notice of entry of judgment upon appellant, considerable controversy would have been avoided. However, the record reflects that through correspondence from respondent's counsel, appellant had been informed of the entry of judgment and its provisions. She has accepted the benefits of the judgment and has attempted to enforce its provisions relating to an obligation owed by respondent on a 1970 station wagon automobile.

A party who has taken advantage of the favorable provisions of a judgment or has acquiesced in its terms by enforcing it will not be permitted a review. Hummel v. Roberts, 70 Nev. 225, 265 P.2d 219 (1954); Gerbig v. Gerbig, 60 Nev. 292, 108 P.2d 317 (1940). Accordingly, we decline to consider the part of this appeal taken from the original judgment entered on February 10, 1972.

2. We turn now to consider whether the trial court erred when it amended the original judgment, in part, to change custody of the minor children from appellant to respondent. The district court found that the appellant had continued her relationship when an unmarried male and had allowed and encouraged this individual to remain in her home far into the evening and early morning hours. It was further found that appellant had continually engaged in illicit conduct in her home when the children were in close proximity to her bedroom and that the older children (age 9) were of a 'discerning age and aware than an unmarried man sleeps in the same bedroom with appellant at times.' The recors also revealed that when appellant's paramour came to the home and left the house at late hours it disturbed at least one of the older children. Evidence was also presented that the school work of the two older children had deteriorated while they were in appellant's custody.

Matters of custody and support of minor children of parties to a divorce action rest in the sound discretion of the trial court, the exercise of which will not be disturbed on appeal unless clearly abused. Fenkell v. Fenkell, 86 Nev. 397, 469 P.2d 701 (1970); Peavey v. Peavey, 85 Nev. 571, 460 P.2d 110 (1969); Cosner v. Cosner, 78 Nev. 242, 371 P.2d 278 (1962). In determining the question of custody of children, the court's paramount consideration should be the welfare of the child. NRS 125.140; Peavey v. Peavey, supra; Paine v. Paine, 71 Nev. 262, 287 P.2d 716 (1955).

It is presumed that a trial court has properly exercised its judicial discretion in determining the best interests of the children. Howe v. Howe, 87 Nev. 595, 491 P.2d 38 (1971); Noble v. Noble, 86 Nev. 459, 470 P.2d 430 (1970); Fenkell v. Fenkell, supra; Cosner v. Cosner, supra.

Here the trial court specifically found a significant change of circumstances in the parties, as well as the fact that the conduct of the appellant rendered her unfit to have the care, custody and control of the minor children and that a change in custody from appellant to respondent was in the children's best interest. The record can be read to support the findings and conclusions reached by the trial court. Compare Murphy v. Murphy, 84 Nev. 710, 447 P.2d 664 (1968). In reaching its decision the trial court has adhered to and applied a myriad of rules and their variations laid down over the years by this court in child custody cases.

In Sisson v. Sisson, 77 Nev. 478, 367 P.2d 98 (1961), under somewhat similar, although more revealing, circumstances occurring prior to a divorce, this court reversed the trial court and ordered custody in the father. In Toth v. Toth, 80 Nev. 33, 389 P.2d 73 (1964), under very similar circumstances, this court held that the trial court did not abuse its discretion in changing the custody of the children from the mother to the father. ² There the children were approximately nine, five and two years of age when it...