Ficek v. Ficek

• Decision Date: 22 April 1971
• Docket Number: No. 8691,8691
• Citation: 186 N.W.2d 437
• Parties: Donna Lorraine FICEK, Plaintiff and Respondent, v. Lawrence FICEK, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 437

186 N.W.2d 437

Donna Lorraine FICEK, Plaintiff and Respondent, v. Lawrence FICEK, Defendant and Appellant.

Civ. No. 8691.

Supreme Court of North Dakota.

April 22, 1971.

Syllabus by the Court

1. In determining the custody of children in a divorce action, the welfare and best interests of the children is the paramount consideration.

2. The evidence is examined and is found to sustain the findings of the trial court. For reasons stated in the opinion, the judgment of the trial court is affirmed.

McIntee & Whisenand, Williston, for plaintiff and respondent.

Rolfstad, Winkjer & Suess, Williston, for defendant and appellant.

STRUTZ, Chief Justice.

The plaintiff brought this action and defendant counterclaimed, both seeking a divorce. The plaintiff failed to reply, but the parties stipulated in writing that plaintiff withdraw her complaint and consent that the action be tried on defendant's counterclaim. On the evidence produced at the trial, the court found that defendant had established his counterclaim for divorce on the ground of adultery of plaintiff. We have examined the evidence and find that it sustains the trial court's decision. The only issue contested in the hearing before the trial court concerned the custody of the two minor daughters of the parties, who were aged five and three years, and the amount of payments to be awarded for the support, maintenance, and education of such children. A divorce was granted the defendant husband, but the custody of the two small daughters was awarded to the plaintiff wife, with rights of visitation to the defendant father. The defendant was ordered to make certain payments for the support, maintenance, and education of the children.

From the judgment entered, the defendant takes this appeal, demanding trial de novo, and argues the sole issue of custody of the two small children.

The issue raised on this appeal, as to whether the court erred in awarding custody of the children to the plaintiff mother, is based upon the plaintiff's admission that she had committed adultery. The husband asserts that, this being true and undisputed, she cannot be awarded the custody of the two small daughters and that the trial court erred in awarding custody to her.

This court repeatedly has held that in determining the custody of children in a divorce action, the welfare of the children is to be given paramount consideration. Noakes v. Noakes, 185 N.W.2d 486 (N.D.1971); Kucera v. Kucera, 117 N.W.2d 810 (N.D.1962); Rufer v. Rufer, 67 N.D. 67, 269 N.W. 741 (1936); Horner v. Horner, 66 N.D. 619, 268 N.W. 428 (1936).

We do not believe it is necessary for us to comment on the evidence in this case, other than to say that we have reviewed it. Although the plaintiff concedes that she committed adultery on one occasion, the record shows that in other respects she is a good mother. The children always are clean and well cared for. We believe the evidence justifies the trial court's decision to award custody of the two small children to her. They are girls of tender years, and the natural place for little girls is with their mother. Our law provides that in the appointment of guardians for children, as between the parents, neither is entitled to custody as a matter of right. But, other things being equal, if the children...