Gotthelf v. Gotthelf

• Decision Date: 16 June 1931
• Docket Number: Civil 3033
• Parties: ERNESTYNE E. GOTTHELF, Appellant v. EDWARD J. GOTTHELF, Jr., Appellee
• Court: Arizona Supreme Court

300 P. 186

38 Ariz. 369

ERNESTYNE E. GOTTHELF, Appellant v. EDWARD J. GOTTHELF, Jr., Appellee

Civil No. 3033

Supreme Court of Arizona

June 16, 1931

APPEAL from a judgment of the Superior Court of the County of Pima. Fred W. Fickett, Judge. Judgment affirmed.

Mr Louis G. Hummel, for Appellant.

Mr John B. Wright and Mr. William R. Misbaugh, for Appellee.

OPINION

ROSS, J.

On July 19, 1929, the plaintiff, Ernestyne E. Gotthelf, filed a complaint for divorce from the defendant, Edward J. Gotthelf, Jr., in the superior court of Pima county, on the grounds of cruelty. In the complaint it was alleged that the issue of their marriage was Edward J Gotthelf, III, aged 3 years, and that plaintiff was "a necessary and proper person to have the custody and control of said child"; that defendant was a practicing physician and surgeon capable and earning large sums of money, and that $250 per month was a reasonable allowance for the support and maintenance of plaintiff and said minor child, as permanent alimony. It was also alleged that there was no community property. Defendant filed an answer on the same day in which he specifically admitted the residence, marriage, the birth and age of Edward J. Gotthelf, III, the fitness of plaintiff to have his care and custody, and that there was no community property; did not deny and therefore admitted the charge of cruelty, also his ability to pay support and maintenance for plaintiff and the child as alleged.

On the same day the court heard the case and entered its decree as follows: (1) The plaintiff was granted an absolute divorce; and (2) awarded the custody and control of the minor child. (3) It was found there was no community property and that neither spouse had any right to the property, real or personal, then owned or subsequently acquired by the other. "(4) That defendant pay to plaintiff for the support and maintenance of herself and said minor child the sum of two hundred fifty ($250.00) dollars on or before the 20th day of July, 1929, and a like sum on or before the 20th day of each month thereafter until the further order of this court."

On May 13, 1930, the defendant filed his second amended petition for modification of the decree (the first petition having been filed on April 24th) in which he charged the plaintiff with leading a dissolute and corrupt life and neglecting properly to care for the minor child, the allegations in that respect being as follows:

"That she has been engaging in drinking parties; that she is frequently intoxicated, and frequents public dance halls, cafes and like places, under the influence of intoxicating liquor; that she associated with men of dissolute character, the names of some of said men being unknown to this defendant; that due to her habits and manner of living, she is neglecting to properly care for the minor child of these parties, often leaving the said minor child for long period of time, day and night, under the care and control of incompetent people.

"That on the 14th day of April, 1930, at the residence of Charles G. Miller, 1905 East 4th Street, Tucson, Arizona, the plaintiff committed adultery with one Bert Parker, a married man.

"That the plaintiff has become, and is, an unfit and improper person to retain the care and control of said child, and it is for the best interests of said child that its custody and control awarded under said decree of divorce to said plaintiff be taken from said plaintiff.

"That this defendant is informed and believes, and on such, alleges that the plaintiff threatens to move the said child from under the jurisdiction of this court, and this defendant fears that she may so remove the said child at any time unless restrained by order of this court.

"That it is for the best interests of said minor child that it be placed in the care, custody and control of a proper person or institution until further ordered by the court, and this petitioner alleges that St. Joseph's Orphanage, of Tucson, Arizona, is a fit and proper institution in which to place said child to be cared for and educated until further order of the court; said child to be supported and maintained by this petitioner and both plaintiff and defendant given the right to visit said child at all proper times."

The prayer to this petition was: (1) That the care, control and custody of the child be taken from plaintiff and given to some disinterested person or institution, preferably St. Joseph's Orphanage of Tucson; (2) that defendant be relieved from the payment of any further sum or sums whatsoever to the plaintiff; (3) that an order be issued restraining the plaintiff from removing the child from Pima county.

On the same date (May 13th) in conformity with the motion of plaintiff, the defendant filed a "bill of particulars" in which is set out six different and separate acts of misconduct of the plaintiff, giving the dates, places, and parties.

The plaintiff filed a demurrer to the petition and the bill of particulars, or that portion thereof asking that defendant be relieved from the payment of any further sums to the plaintiff as maintenance and support money, asserting that the facts stated did not justify the granting of such relief. The same question was presented by a motion to strike. She also plead in bar of the right to change or modify the allowance for support and maintenance that said amount of $250 was settled upon by agreement between them, by which said agreement the defendant promised and undertook to pay her that amount monthly thereafter; that the agreement was made after they had separated and when it was certain that reconciliation was hopeless, and was solely for the purpose of settling property rights of the parties and making provision for the support of plaintiff and her child. Plaintiff also filed a verified answer to all the charges of misconduct set out against her in the second amended petition and bill of particulars, denying, explaining or justifying her conduct.

The court heard the evidence introduced by both parties, and on the 'twenty-ninth day of May, 1930, found "in favor of the defendant and that each and all of the allegations set forth in his petition and bill of particulars in the main are true and that the plaintiff is an unfit person to have the care and custody of said child, and that the maintenance and support money heretofore and in the original decree awarded her be modified as hereinafter stated."

The decree then awards the custody of Edward J. Gotthelf, iii, to St. Joseph's Orphanage of Tucson, and directs that he remain there until a suitable private home is found which meets the approval of the court, and that both plaintiff and defendant be permitted to visit the child at all reasonable times; that the defendant pay to the plaintiff on the twentieth day of June, July, and August, 1930, the sum of $175 for each of said months, and thereafter on the twentieth day of each month the sum of $50 until the further order of the court.

Plaintiff made a motion for a new trial, which was denied. She appeals from this order and also from the judgment modifying the original decree.

The assignments raise questions both of fact and of law. Without trying to follow these assignments by number and separately, we will consider the points raised by them in a general way. Judging from the record, the battle waged in the lower court over the right and power of that court to change the allowance for support and maintenance and the custody of the child from the mother over to the St. Joseph's Orphanage of Tucson was both warm and bitter. This is evidenced not only from the briefs but from the proceedings in the course of the trial.

The effort was to secure the modification in vital...