Grothendick v. Grothendick

• Decision Date: 11 October 1963
• Docket Number: No. 35396,35396
• Citation: 123 N.W.2d 646,175 Neb. 726
• Parties: Donna Mae GROTHENDICK, a/k/a Donna Mae Moreland, Appellant, v. Donald M. GROTHENDICK, Appellee.
• Court: Nebraska Supreme Court

Page 646

123 N.W.2d 646

175 Neb. 726

Donna Mae GROTHENDICK, a/k/a Donna Mae Moreland, Appellant, v. Donald M. GROTHENDICK, Appellee.

No. 35396.

Supreme Court of Nebraska.

Oct. 11, 1963.

Syllabus by the Court

1. In an action for divorce where the custody and maintenance of children are involved and a decree has been rendered fixing custody and maintenance, if the circumstances of the parties shall change, or it shall be to the best interests of the children, the court is empowered by statute afterwards from time to time on its own motion or on the petition of either parent to revise or alter, to any extent, the decree so far as it concerns the care custody, and maintenance of the children or any of them.

2. In the absence of error or a showing that the action of the court was unreasonable, such action will not ordinarily be vacated or set aside on appeal.

Kelley, Grant & Costello, Omaha, for appellant.

Boyle & Hetzner, White, Lipp, Simon & Powers, Omaha, for appellee.

Heard before WHITE, C. J., and CARTER, MESSMORE, YEAGER, SPENCER, BOSLAUGH, and BROWER, JJ.

YEAGER, Justice.

This is a proceeding to modify or change the part of a decree of divorce relating to the custody of two minor children of the plaintiff, who is appellant here, and the defendant, who is appellee here, in an action in the district court for Douglas County, Nebraska. The plaintiff instituted the action for divorce but the record here fails to disclose to which of the parties the decree awarded the divorce. The decree has not come to this court as a part of the record.

The proceeding here was instituted by the plaintiff by the filing on May 23, 1962, of a petition in that action in which she declared that the parties were divorced on December 4, 1959; that the defendant was awarded custody of the two children; that on June 17, 1960, the court on its own motion placed the children in the custody of the district court, and at that time placed them in possession of the plaintiff; that on November 21, 1960, the custody was continued in the district court but it was provided that possession be given to a boarding home approved by the court for 6 months or less; that on September 15, 1961, erroneously stated in the petition as August 16, 1961, on motion of the plaintiff to modify the previous order with reference to custody and to grant it to plaintiff, custody was instead awarded to the defendant; and that possession was awarded to the parents of defendant until the further order of the court, with permission to the plaintiff to visit them on the fourth Sunday of each month between the hours of 1 p. m. and 7:30 p. m. The prayer was for modification of the previous award by granting custody to her. To this petition the defendant, on June 25, 1962, filed a general denial.

On June 29, 1962, the defendant filed an application for a grant of right to remove the children under his custody to the State of Colorado.

A hearing was had on the petition of plaintiff and the application of defendant, and an order was entered granting full custody of the children to the defendant with right to remove them to his home in the State of Colorado.

At the hearing evidence was adduced on behalf of both parties but from it all and the transcript, there is nothing whatever which discloses a reason for the original decree or the modifications subsequent thereto and...