Good v. Good

• Decision Date: 28 May 1957
• Docket Number: No. 8526,8526
• Parties: Robert E. GOOD, Plaintiffs-Appellant, v. Lorraine M. GOOD, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 756

311 P.2d 756

79 Idaho 119

Robert E. GOOD, Plaintiffs-Appellant, v. Lorraine M. GOOD, Defendant-Respondent.

No. 8526.

Supreme Court of Idaho.

May 28 ,1957.

Anderson & Anderson, Pocatello, Anderson & Beebe, Blackfoot, for appellant.

H. William Furchner, Blackfoot, for respondent.

TAYLOR, Justice.

Plaintiff (appellant) was granted a divorce from defendant (respondent) May 24, 1955, upon the ground of extreme cruelty. The custody of the two children of the parties, a girl four years of age and a boy less than two years of age, was awarded to the plaintiff for the period of one year from the date of the decree, during which time the children were to remain within Bingham County, Idaho, in the actual care and control of their paternal grandparents. This temporary arrangement was made because of the fact that plaintiff was an officer in the United States army stationed abroad and would not be in a position to personally exercise custody, and 'that defendant, though a proper person to have the care and custody of said minor children, is not presently fit to have full time custody of said minor children by reason of emotional instability resulting from her recent recovery from a serious mental illness and the possibility of a recurrence thereof'. The decree further provided that the defendant should have temporary custody of the children on Saturdays and Sundays during the one-year period, and that at the end of the year the defendant should have the exclusive custody of the children with right of visitation in plaintiff. The decree also provided that during the one-year period the defendant should submit herself for 'out-patient interview and examination to the medical and psychiatric staff at the State Hospital South, Blackfoot'. It appears from the record that defendant had suffered a mental upset or near nervous breakdown, from which she had for the most part recovered at the time of the trial.

During the year following the decree the defendant complied with its requirements and also attended the Idaho State College at Pocatello, where she took training to qualify herself for teaching and secretarial work, and the children remained in the custody of the paternal grandparents at Blackfoot.

On May 22, 1956, just a few days prior to the time defendant would have been entitled to the custody by the terms of the decree, plaintiff filed a motion for an order of the court eliminating from the decree the provision requiring plaintiff to pay to defendant $100 per month as alimony for her support, and for an order restraining defendant from removing the children 'from the Sixth Judicial District of the State of Idaho'. The motion was supported by the affidavit of the paternal grandmother, in which she alleges that it is the purpose of the defendant to take the children from the state of Idaho to the state of California, and thus to deprive the plaintiff of the right of visitation and contact with the children. In her counter-affidavit, defendant alleges her intention to take the children to California; that she has friends and relatives there who will assist her in securing more profitable employment than she can secure in Idaho; and that plaintiff is a permanent career officer in the United States army; that he will be absent from Idaho continuously except for periods of leave, and that he can as well see and visit the children in California on such occasions as he could do in Idaho. Defendant also by motion on her part sought an order modifying the decree by increasing the amount provided therein for support of the children from $37.50 to $87.50 per month for each child.

After hearing the testimony offered by the parties, the court denied both motions. The court found that the defendant 'is mentally and emotionally stable and capable of handling her own affairs and those of the minor children, and it would seem that there would be no real basis for making permanent a restraining order requiring the defendant to keep the children in the State of Idaho. * * * That the plaintiff is presently in the United States Army stationed in Korea as a regular officer of the Army and that he will continue to remain in the armed forces of the United States indefinitely; that it is necessary for defendant to secure employment in order to adequately support herself and the minor children of the parties and that she will have greater opportunities for securing employment if she is permitted to take the children with her to other places where employment may be secured, some of which may be outside the State of Idaho; that the plaintiff's rights of visitation will not be impaired by removal of the children from Idaho and that there is no substantial reason to require that said children be kept in Idaho.' We find no error or abuse of discretion in the denial of plaintiff's request that defendant be restrained from removing the children from the state. Roosma v. Moots, 62 Idaho 450, 112 P.2d 1000; Holden v. Holden, 63 Idaho 70, 116 P.2d 1003; Duncan v. Duncan, 293 Ky. 762, 170 S.W.2d 22, 154 A.L.R. 549, annotation 552; Annotation 15 A.L.R.2d 432.

The decree contains no restriction requiring defendant to keep the children within the state. No substantial change in conditions was shown to warrant modification of the decree in that respect. Fish v. Fish, 67 Idaho 78, 170 P.2d 802; Maudlin v. Maudlin, 68 Idaho 64, 188 P.2d 323; Thurman v. Thurman, 73 Idaho 122, 245 P.2d 810, 32 A.L.R.2d 996; Wilson v. Wilson, 73 Idaho 326, 252 P.2d 197; Wenzel v. Wenzel, 76 Idaho 7, 276 P.2d 485.

As the basis of its order denying plaintiff's motion to eliminate the provisions for permanent alimony, the court said:

'That though the decree of divorce in this action was awarded to the plaintiff it is based upon the finding of the Court that the said parties were mentally and emotionally opposites and their being married to each other resulted in a nervous breakdown on the part of defendant which was not an act of guilt on her part and that it was for the best interests physically and mentally of both parties that a divorce be awarded, and the defendant was and is entitled to the alimony provided by the decree herein to which provision plaintiff agreed at the time of making thereof.'

In denying defendant's motion for an increase in the amount ordered for support of the children, the court said:

'* * * the motion of the defendant be and the same is hereby denied, taking into consideration the action taken by the court on the plaintiff's motion.'

From this it appears that the court based its denial of an increase of support for the children in part upon its conclusion that plaintiff should be required to pay defendant $100 per month permanent alimony.

In support of his motion to eliminate the award of alimony, plaintiff urges that permanent alimony cannot be allowed to the wife in a case where the divorce is granted to the husband, and relies upon the statute, which is as follows:

'Where a divorce is granted for an offense of the husband, including a divorce granted upon the husband's complaint, based upon separation without cohabitation for five years, the court may compel him to provide for the maintenance of the children of the marriage, and to make such suitable allowance to the wife for her support as the court may deem just, having regard to the circumstances of the parties respectively; and the court may, from time to time, modify its orders in these respects.' § 32-706, I.C.

Plaintiff cites several California cases holding under a similar statute that the court has no jurisdiction to allow permanent alimony to the wife where the divorce is granted to the husband for fault of the wife. The latest of the cited cases is, McLaughlin v. Superior Court, 128 Cal.App.2d 62, 274 P.2d 745.

The rule denying alimony in such cases appears to be based in part upon the reasoning that since the common law permitted no alimony to either party in any case, the statute was enacted to change the rule and allow alimony in cases where the divorce is granted for an offense of the husband, impliedly leaving the rule of the common law to govern in cases where the divorce is granted for an offense of the wife. Assuming such reasoning is good, it does not follow that the rule of the common law must forever remain fixed and unyielding in all cases and under all circumstances. The contention ignores or denies one of the basic virtues of the common law system. The common law is not immutable. It is a flexible legal system capable of expansion and change necessary to meet new and changed problems and conditions, or to meet a new or altered public policy evolving from such changed conditions in an expanding and developing social order.

"This flexibility and capacity for growth and adaptation is the peculiar boast and excellence of the common law.' * * *

'To concede this capacity for growth and change in the common law by drawing 'its inspiration from every fountain of justice,' and at the same time to say that the courts of this country are forever bound to perpetuate such of its rules as, by every reasonable test, are found to be neither wise nor just, because we have once adopted them as suited to our situation and institutions at a particular time, is to deny to the common law in the place of its adoption a 'flexibility and capacity for growth and adaptation' which was 'the peculiar boast and excellence' of the system in the place of its origin.

'* * * It has been said so often as to have become axiomatic that the common law is not immutable but flexible, and by its own principles adapts itself to varying conditions.' Funk v. United States, 290 U.S. 371, 54 S.Ct. 212, at page 216, 78 L.Ed. 369, 93 A.L.R. 1136, at pages 1142-1143.

In the Funk case it was recognized that 'The public policy of one generation may not, under changed conditions, be the public policy of another.' 93 A.L.R. 1136, syllabus 2. The Supreme Court refused to recognize the common law...