Hawkins v. Hawkins
| Decision Date | 28 December 1978 |
| Docket Number | No. 12421,12421 |
| Citation | 99 Idaho 785,589 P.2d 532 |
| Parties | Jeanne E. HAWKINS, now known as Jeanne E. Hallock, Plaintiff-Respondent and Cross-Appellant, v. Lynn A. HAWKINS, Defendant-Appellant and Cross-Respondent. |
| Court | Idaho Supreme Court |
Byron J. Johnson of Webb, Johnson, Redford & Greener, Boise, for appellant.
Stanley Welsh of Clemons, Cosho, Humphrey & Samuelsen, Boise, Paul M. Mahoney of Allard, Shelton & O'Connor, Pomona, Cal., for respondent.
At the time of their parents' divorce in Ada County District Court in the summer of 1973, the two children of the dissolved marriage were girls, six and four years of age, then living with their father. The mother sought the divorce. She alleged the fitness of both parents, adding that under circumstances then existing that it was in the best interests of the children that the father have custody subject to reasonable visitation rights in the mother. Although the action went by default, the district judge before whom the cause was heard inquired of the mother as to her relinquishment of custody of her children, holding the matter under advisement while he obtained the benefit of a child custody investigation by an appropriate state agency. Thereafter a final decree was entered in which custody was placed in the father and reasonable visitation awarded to the mother.
Before a year went by there were minor skirmishes between the parties as to the fulfillment of reasonable visitation in the mother. In due time there followed the mother's petition that the final decree be modified to place custody with her. Declaring that the circumstances which had existed at the time of the divorce had changed, she alleged that the requested custody change would be in the best interests of the children. She premised change of circumstances on allegations that at the time of the divorce her health had not been good, but that, away from the children's father, she had recovered, had subsequently remarried, and could now resume her care of the children.
THE CUSTODY ISSUE.
The modification proceeding did not come before the district judge who had first heard the divorce and custody issue, but was assigned to an attorney magistrate for trial of the issue raised. 1 The trial court found a change in the mother's circumstances as alleged, but found no detrimental change whatever in the father's circumstances. He found that the father maintained the children in a clean suitable home, and that he had provided the girls with appropriate physical and health care, religious training, love, discipline and support. He concluded that custody should not be changed and entered an order to that effect. The mother appealed to the district court. By written opinion, the district court held that:
(T)he record substantiates Judge Carey's findings and conclusions. The (mother) obviously has readjusted her life and is now emotionally and physically able to once again care for her two daughters. The father continues to be a thoroughly adequate parent and custodian of the children.
On further appeal to this Court, the mother continues her challenge to the trial court's refusal to award her custody. Relying on Brashear v. Brashear, 71 Idaho 158, 228 P.2d 243 (1951), the mother urges that the trial court abused its discretion in not awarding custody to her on the premise that, all things being equal, children of tender years, especially girls, should be in the custody of their mothers. We conclude that the trial court was justified in finding that all things were Not equal in this case. Although both the mother and father have been found fully qualified to be the custodial parent, these children have resided continuously with their father since early 1973. Moreover, this was not the original custody litigation, but a modification proceeding brought after the father's custodial function was tested by the passage of time. The trial court found that the father had performed as an excellent parent. The district court in its appellate review determined that these findings are amply supported by the record. The record amply sustains the district court in his conclusion, with which we agree.
The mother has also argued, citing Bezold v. Bezold, 95 Idaho 131, 504 P.2d 404 (1972), that a child's preference, though not binding, should be taken into consideration, and that one daughter expressed a preference to live with her mother. The trial judge was entitled to weigh this expressed preference in light of the facts of the case, Posey v. Bunney, 98 Idaho 258, 561 P.2d 400 (1977), including the child's age (the oldest had just turned eight) and the fact that the mother had the girls with her up until the day of the hearing, after having obtained them in June for what was to have been a summertime visitation. Nothing in the record suggests that the trial court did not accord proper weight to the one girl's expression of preference.
The trial court explicitly concluded that it was in the best interests and welfare of the minor children that they continue in the custody of their father. The district court found that conclusion supported by sufficient evidence, and we agree. A trial court is guided by the principle that the paramount consideration in any custody proceeding is the best interests and welfare of the children involved. Posey v. Bunney, 98 Idaho 258, 561 P.2d 400 (1977); Prescott v. Prescott, 97 Idaho 257, 542 P.2d 1176 (1975). An abuse of the trial court's wide discretion occurs only when the evidence is insufficient to support its conclusion that the interests and welfare of the children will be best served by a particular custody award. Tomlinson v. Tomlinson, 93 Idaho 42, 454 P.2d 756 (1969); Larkin v. Larkin, 85 Idaho 610, 382 P.2d 784 (1963).
THE VISITATION ISSUE:
As noted above, in the original divorce decree, the mother was given the right of reasonable visitation. When she subsequently sought modification awarding custody to her, she did not alternatively request the court to further, and in detail, define her visitation rights. The record shows that in the period of time from the divorce and up until the modification hearing, there were some problems, probably not large in the overall course of human relationships. A court order had been required at one time on the occasion of the father preparing to be gone from Boise for an extended time in connection with his work, but refusing to allow the mother to have the children with her while he was gone. The record reflects that the parties were thereafter able to agree on reasonable visitation until about the time the mother's custody modification petition was filed. 2 Notwithstanding that she sought no definition of visitation rights, the trial court spelled out her visitation in detail:
In every month other than June, August, and December, a 48 hour week-end, ceasing at 6:00 P.M. on Sunday, to take place within the State of Idaho.
The last fifteen days in June.
The first fifteen days in August.
Six days just after Christmas, ceasing at 6:00 P.M. on January 2.
The June, August, and December visitations were authorized to be exercised in California or Idaho, but a.$1000.00 cash bond was required as a condition of the mother's right to take the children out of Idaho.
The mother was required to pay all costs of transportation related to visitation and to accompany the children on any such transportation.
The trial court's belief that he should rule on and define visitation is best explained by his own language set forth in his findings and conclusions:
( 25) There has developed since the separation and divorce such animosity between the parties that they have not dealt with each other in a reasonable fashion with respect to the care, custody, control and visitation of the children; nevertheless both parties expressed in open Court a desire to cooperate in insuring that the best interests of the children will be served in the future.
(Conclusion 4) It is not in the best interests and welfare of the minor children that there be continued friction and discord between the parties concerning visitation. Where, as here, the parties have not acted reasonably with respect to visitation rights, the Court is required to define said rights in such detail, and to make and enforce such regulations, as may become necessary to secure their proper observance. See, Kirkwood vs. Kirkwood, 83 Idaho 844 (444), 363 P.2d 1016 (1961); Dawson v. Dawson, 90 Idaho 234, 409 P.2d 434 (1965); I.R.C.P., Rule 54(c).
The district court, on its review, held the trial court had too severely restricted the mother's visitation of the children, observing that
The record and findings both substantiate the mother's present stability and ability to care for her two daughters and maximum exposure to this relationship ought to be encouraged and fostered.
The district court modified the trial court's visitation order so as to provide the mother with
Summer visitation to consist of that period of time from one week after school ends in the spring until one week before it begins in the fall.
The remainder of the visitation schedule was not altered; however, the trial court's transportation expense provision was replaced with one requiring that transportation be paid by the "receiving parent." The requirement that the mother accompany the children on any transportation was eliminated. The district court further provided that the father should pay the sum of $75 per child for each of the three summer months that the children were with their mother.
From the appellate decision of the district court, the father has appealed all district court modifications other than that which eliminated the requirement of accompaniment. As a procedural matter, he challenges the authority of the district court to modify the visitation provisions set by the trial court. He argues that the scope of an appellate court's power to modify a judgment is narrow and is confined to cas...
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