Culbertson v. Jones
| Decision Date | 22 June 1948 |
| Docket Number | Case Number: 33277 |
| Citation | 1948 OK 153,201 Okla. 341,205 P.2d 878 |
| Parties | CULBERTSON v. JONES |
| Court | Oklahoma Supreme Court |
¶0 1. DIVORCE - Modification of decree fixing custody of minor child where for best interest of child.
A decree of divorce, which fixes the custody of a minor child, may be modified as to such custody where it is shown that such action of the court will be for the best interest of the child.
2. SAME - Discretion of trial court as to determination of custody of minor child - Best interest of child paramount consideration.
In the determination of the custody of a minor child, contested for by divorced parents, the best interests of the child should be the paramount consideration of the court, and where it does not appear that the trial court has abused its discretion, this court will not reverse the order of the trial court.
Appeal from District Court, Oklahoma County; Clarence Mills, Judge.
Proceeding on joint application of J.J. Culbertson and Bonnie D. Culbertson with counter application of Mary G. Jones, formerly Culbertson, to modify a former decree of divorce with reference to the custody of a minor child. From a judgment in favor of Mary G. Jones, formerly Culbertson, both other applicants appeal. Affirmed.
Arnold Fleig and John Barry, both of Oklahoma City, for plaintiffs in error.
Gomer Smith and Gomer Smith, Jr., both of Oklahoma City (Jean P. Day and William M. Allen, both of Oklahoma City, of counsel), for defendant in error.
¶1 This case concerns the custody of Helen Lee Culbertson, a minor, now aged ten years.
¶2 In 1943 the parents were divorced. Both parties recommended that custody of the child be granted to the paternal grandmother. She was amply able to support and provide for the child and desired such custody. The trial court, without any finding that either the father or mother was an unfit person to have custody of the child, decreed custody to the grandmother, who has since had such custody. There was, of course, provision for reasonable visitation by each parent.
¶3 Thereafter the child's father married a second wife and established a home, and the mother married a second husband and established her home. Thereafter, in 1947, the two applications here involved were filed. First the father and grandmother filed a joint application for change of custody of the child to the father, stating reasons why that would be for the best interests of the child. Thereupon the mother filed her application seeking custody of the child. There were further pleadings by way of responses.
¶4 The applications were tried together, and upon the evidence the trial court made a general finding that it was for the child's best interest that her custody be changed to her mother, and it was so adjudged, with provisions for visitation, and some custody in the father during school vacation time. There was no finding of any fault in the grandmother in her care of the child, and no finding of unfitness in the father.
¶5 Both the father and the grandmother prosecute this appeal. No special challenge is made to the right of the grandmother to appeal.
¶6 We shall consider the several propositions and contentions relied upon by plaintiffs in error for reversal.
¶7 We notice the rules of law and decisions in reference to child custody confided by parents to others on specific contract, with fixed duration, or to terminate only on stated eventualities. However, we find no analogy here, since we conclude the proceedings in 1943, as above outlined, did not constitute such a contract. Nor do we find that the grandmother acquired any vested right to continuous custody of the child by virtue of the manner she obtained custody or by the period of time she retained such custody.
¶8 We have also considered the custody decree of 1943 and do not consider it as binding and conclusive against the further or future rights of the parents to seek modification. The applicable rule seems to be that future change may be freely made when found to be for the best interest of the child. See 12 O.S. 1941 § 1277; Bruce v. Bruce, 141 Okla. 160, 285 P. 30; Newberry v. Newberry, 147 Okla. 249, 296 P. 202; Bynum v. Bynum, 184 Okla. 36, 84 P.2d 424; Gates v. Gates, 127 Okla. 198, 260 P. 41; Garner v. Garner, 143 Okla. 183, 288 P. 298; Strauch v. Strauch, 196 Okla. 184, 164 P.2d 220; Morrison v. Morrison, 197 Okla. 620, 173 P.2d 919.
¶9 Though we are mindful of the rule that such future change of custody may be made only in case of substantial and material change of facts. See Jackson v. Jackson, 200 Okla. 333, 193 P.2d 561; 17 Am. Jur. § 684; Stanfield v. Stanfield, 22 Okla. 574, 98 P. 334.
¶10 It is suggested that the trial court erred in denying a request that he interview the child. No effort was made to call the child as a witness and there is nothing to indicate that the child was in or about the courtroom. The matter was presented in this wise, near the end of the trial counsel for the father made this statement: Thereupon the court indicated a contrary view and the matter went no further, that is, the request was not insisted upon and no exception was taken to the court's ruling. In fact, there was no formal ruling, but merely the presentation of the request in the above language and the court's indication that he was not inclined to grant the request. We take it this was a request addressed to the discretion of the trial judge. It is pointed out in the briefs that counsel did not intend to request that the child be called as a witness, but had in mind a private interview between the trial judge and the child in the judge's chambers. While such procedure would be unusual, and assuming, but not deciding that such procedure would be proper, it would still be a matter addressed to the discretion of the trial judge. Here there was neither acquiescence nor objection on the part of the mother. We assume this point is a contention that the trial court abused its discretion, but there is nothing on which we could so hold.
¶11 We observe the cases cited on this point. In Bishop v....
To continue reading
Request your trial
-
Adams v. Adams
...as to show an abuse of discretion. Application of Boyd, Okl., 274 P.2d 399; Lewis v. Sisney, 205 Okl. 599, 239 P.2d 787; Culbertson v. Jones, 201 Okl. 341, 205 P.2d 878; Blake v. Blake, 182 Okl. 123, 76 P.2d 904. One of the principal reasons why, under said rule of appellate review, such ma......
-
Lee v. Lee, 40560
...v. Miracle, Okl., 360 P.2d 712, and other cases in support of this proposition. In her answer brief, the mother cites Culbertson v. Jones, 201 Okl. 341, 205 P.2d 878; Roberts, et ux. v. Biggs et ux., Okl., 272 P.2d 438; and Marcum v. Marcum, Okl., 265 P.2d There is no substantial dispute as......
-
Ford v. Ford
... ... Bynum, 184 Okl. 36, 84 P.2d 424; Childers v. Childers, 202 Okl. 409, 214 P.2d 722; Culbertson v. Jones, 201 Okl. 341, 205 P.2d 878; and Jones v. Jones, 177 Okl. 181, 58 P.2d 330 ... The evidence is uncontradicted that the ... ...
- Culbertson v. Jones