Gibbons v. Gibbons, No. 42649

• Court: Supreme Court of Oklahoma
• Writing for the Court: LAVENDER; JACKSON
• Citation: 1968 OK 77,442 P.2d 482
• Docket Number: No. 42649
• Decision Date: 21 May 1968
• Parties: John P. GIBBONS, Plaintiff in Error, v. Nancy Lee GIBBONS, Defendant in Error.

Page 482

442 P.2d 482 1968 OK 77 John P. GIBBONS, Plaintiff in Error,
v.
Nancy Lee GIBBONS, Defendant in Error. No. 42649. Supreme Court of Oklahoma. May 21, 1968.
Rehearing Denied July 16, 1968.

Syllabus by the Court

1. An order fixing the custody of a minor child of the marriage of the parties to a divorce action, included in the final decree of divorce or in an order made subsequent thereto, is final on the conditions then existing, and may not be modified, with respect to the custody of the child, unless material facts are disclosed which were either unknown or could not have been ascertained with reasonable diligence at the time such order was made, or unless a showing is made of a permanent, material and substantial change in the circumstances or conditions of the parties, directly affecting

Page 483

the welfare of the child to a substantial or material extent, and as a result of which it would appear that the child would be substantially better off, with respect to its temporal welfare and its mental and moral welfare, if the requested change in custody were ordered by the court.

2. When, subsequent to the rendition of the final decree of divorce, it is sought to modify the last preceding order fixing the custody of a minor child of the parties to the divorce action, and there is no contention of the existence of any material facts which were either unknown or could not have been ascertained with reasonable diligence at the time of the making of the order sought to be modified, the applicant for such modification has the burden of proof of showing a permanent, material and substantial change in the circumstances or conditions of the parties, directly affecting the welfare of the child to a substantial or material extent, and of making it appear that, as a result of such change in conditions or circumstances, the child would be substantially better off, with respect to his temporal welfare and his mental and moral welfare, if the requested change in custody were ordered by the court.

3. Although, in passing upon an application for modification of a prior order concerning the custody of a minor child, such as is mentioned in paragraphs 1 and 2 of this syllabus, the court may consider, along with all other pertinent facts, the age of the child with respect to being of tender years or being of an age to require education and preparation for labor or business, paragraph 2 of 30 O.S.1961, § 11 cannot be applied to compel a change in custody from one parent to the other parent.

Appeal from the District Court of Tulsa County; Robert D. Sims, Judge.

Proceeding in a divorce action, subsequent to rendition of the final decree of divorce, to modify last preceding order respecting the custody of the minor child of the marriage of the parties by changing its custody from the father to the mother. From an order granting the requested modification and, as an incident thereto, requiring the father to make certai monthly payments to the mother as and for child support, and from an order overruling his motion for a new trial, the father appeals to this court. Order vacated.

Jones & Givens, Tulsa, for plaintiff in error.

Blackstock & Joyce, by Roy Hinkle, Tulsa, for defendant in error.

LAVENDER, Justice.

This appeal involves an order, made in a divorce case subsequent to the final decree of divorce, modifying the last preceding order concerning the custody of the minor child of the partes, a boy who was twelve days less than ten years of age at the time of the making of the order in question. The order in question herein, made September 1, 1967, changed full custody of the boy (subject to the other parent's right of visitation) from the father to the mother, and as an incident thereto, required the father to make certain monthly payments to the mother as and for child support. The mother's motion for such an order was based upon a change in her situation since the making of the last preceding custody order.

The father contends, in substance and effect: (a) that the trial court failed to exercise any discretion in the matter because it expressly based its order upon the erroneous theory that, under the decisions of this court, there is no alternative but to award the custody of a child of tender years to the mother in the absence of a clear showing that she is not a fit person to have the custody of the child; and (b) that, to the extent that the trial court exercised any discretion in the matter, it abused its discretion because the evidence adduced at the hearing was not sufficient to sustain the order in question herein.

From a consideration of the record, it is obvious that the trial court's order is based entirely upon that portion of paragraph 2

Page 484

of 30 O.S.1961, § 11 which says that 'if the child be of tender years, it should be given to the mother.' The entire section provides that:

'In Awarding the custody of a minor, or in appointing a general guardian, the court or judge is to be guided by the following considerations:

'1. By what appears to be for the best interests of the child in respect to its temporal and its mental and moral welfare; and if the child be of sufficient age to form an intelligent preference, the court or judge may consider that preference in determining the question.

'2. As between parents adversely claiming the custody or guardianship, neither parent is entitled to it as of right, but, Other things being equal, if the child be of tender years, it should be given to the mother; if it be of an age to require education and preparation for labor or business, then to the father.' (Emphasis supplied.)

The express authority for a court, in a divorce case, to modify or change its prior order concerning the custody of minor children of the marriage involved, including orders made, as herein, subsequent to the final decree of divorce, is contained in 12 O.S.1961, § 1277, which provides that:

'A petition or a cross-petition for a divorce, legal separation, or annulment must state whether or not the parties have minor children of the marriage. If there are such children, the court shall make provision for guardianship, custody, support and education of the minor children, and may modify or change any order in this respect, Whenever circumstances render such...