Duffy v. King

Decision Date08 March 1960
Docket NumberNo. 38618,38618
Citation350 P.2d 280
PartiesMrs. William DUFFY, Plaintiff in Error, v. Sara KING, Defendant in Error.
CourtOklahoma Supreme Court

Syllabus by the Court

The modification of a decree for the care and custody of a child of divorced parents must be based on some change in circumstances occurring since rendition of the decree or on some fact unknown at the time of the decree.

Appeal from the District Court of Oklahoma County; W. R. Wallace, Judge.

From an order denying motion to modify prior decree granting custody of minor child to defendant, the plaintiff appeals. Affirmed.

Kennedy & Kennedy, John H. Kennedy, Oklahoma City, for plaintiff in error.

Cargill, Cargill & Chiaf, by Al Hoch, Oklahoma City, for defendant in error.

IRWIN, Justice.

On May 8, 1958, an order was entered in the District Court of Oklahoma County, awarding the custody of William J. Duffy, a minor child, to its natural mother, Sara King. In that action, Mrs. William Duffy, plaintiff in error in the instant case and paternal grandmother of the minor child, sought custody of said child until April 22, 1959. Notice of appeal from the order of May 8, 1958, was given by Mrs. William Duffy.

Prior to the time a case-made could be prepared and settled, she filed a motion in the same action to modify the order and sought full care and custody of the child. On October 8, 1958, a hearing was had and an order denying the modification was entered and notice of appeal given.

The appeal from the order of May 8, 1958, was perfected and docketed in this Court as Case No. 38,524, 350 P.2d 277, and on this date the order of May 8, 1958, awarding the custody of the minor child to its natural mother, Sara King, was affirmed.

The appeal from the order of October 8, 1958, which denied the application of Mrs. William Duffy to modify the order of May 8, 1958, was perfected and docketed in this Court under Case No 38,618, and was consolidated with Case No. 38,524 for briefing.

In the motion to modify the order of May 8, 1958, the plaintiff, Mrs. William Duffy, alleges that the defendant, Sara King, was married to Jerry King at the time the order was entered but that they were divorced on July 23, 1958; that the decree of divorce entered by the District Court of Cooke County, Texas, gave plaintiff temporary custody of the child until April 22, 1959, or until the defendant remarried. The divorce decree from Cooke County, Texas, was made a part of the motion by reference and was completely discussed in the companion Case No. 38,524, and is not necessary to discuss it in this case. Plaintiff further alleged that it was not contemplated defendant would secure a divorce within such a short time and return to work...

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3 cases
  • Ferguson v. Krepper
    • United States
    • Nevada Supreme Court
    • October 27, 1967
    ...or could not have been ascertained with reasonable diligence at the time when the last prior determination was made. See Duffy v. King, Okl., 350 P.2d 280 and cases cited therein.' Also, Sinclair v. Sinclair, 392 P.2d 750 (Okl.1964); Davis v. Davis, 424 P.2d 76 The Oklahoma court without an......
  • Ness v. Ness
    • United States
    • Oklahoma Supreme Court
    • December 20, 1960
    ...or could not have been ascertained with reasonable diligence at the time when the last prior determination was made. See Duffy v. King, Okl., 350 P.2d 280 and cases cited There exists no rigid formula by which to measure the nature of proof necessary to establish a change in circumstances s......
  • Gibbons v. Gibbons
    • United States
    • Oklahoma Supreme Court
    • May 21, 1968
    ...or could not have been ascertained with reasonable diligence at the time when the last prior determination was made. See Duffy v. King, Okl., 350 P.2d 280 and cases cited 'There exists no rigid formula by which to measure the nature of proof necessary to establish a change in circumstances ......

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