Hedman v. Hedman, 7400

• Court: North Dakota Supreme Court
• Writing for the Court: GRIMSON; MORRIS
• Citation: Hedman v. Hedman, 62 N.W.2d 223 (N.D. 1954)
• Decision Date: 15 January 1954
• Docket Number: No. 7400,7400
• Parties: HEDMAN v. HEDMAN.

Page 223

62 N.W.2d 223

HEDMAN v. HEDMAN.

No. 7400.

Supreme Court of North Dakota.

Jan. 15, 1954.

Syllabus by the Court.

1. The paramount consideration in determining to whom the custody of minor children shall be awarded, after the divorce of their parents, is the welfare and best interests of the children. The interests of the parents are important only to the extent of how their interests bear on the question of what is best for the children.

2. When, after a divorce and determination of custody has been made a change of custody is sought by the party to whom custody has been denied, a decision again must be on the basis of what is best for the children. The important matters for consideration in determining that question are the attitude of the parties towards the children since the divorce, the ages of the children, any change of circumstances, conduct of the custodial party, the morals of the parents, their financial condition and any matters that bear upon the future wefare of the children.

3. The evidence in the instant case is examined and it is held that change in custody is not for the best interests of the boys involved.

Daniel S. Letnes, Grand Forks, for appellant.

Degnan, Hager & McElroy, Grand Forks, for respondent.

GRIMSON, Judge.

This matter comes before this court on appeal from an order modifying a decree of divorce as to custody of children.

The testimony shows that the plaintiff and defendant were married September 19 1943, when defendant was only 17 years old. At that time the plaintiff was working in the shipyards at Duluth. After the birth of the first boy they moved to Clearbrook, Minn. near where plaintiff's parents lived and where their second boy was born. In 1946 they moved to Petersburg, N. D., where the plaintiff operated a service station in connection with which the defendant operated a small cafe and sold bus tickets. The family lived in the station. During that time some difficulties and misunderstandings seem to have arisen between the parties. Each makes serious accusations against the other. In the evening of the 16th day of October, 1948, the defendant left Petersburg in company with another man who had borrowed plaintiff's truck for a trip to Larimore. The next morning this man notified the plaintiff where he would find his truck in Grand Forks, and the couple proceeded by bus to Peoria, Ill. At that time defendant's sister was staying with the plaintiff and defendant in Petersburg. Defendant left both boys with her husband and her sister and never returned. Within ten days plaintiff started an action for divorce. A judgment by default was entered on December 22, 1948, granting the plaintiff an absolute divorce from the defendant and the custody of their two minor boys, aged three and four years. On due notice defendant, on November 10, 1952, made a motion to the district court for its order to modify the decree of divorce and to grant her the immediate and permanent custody and control of said minor children. Several affidavits were submitted for and against the motion and oral testimony was taken. The court, after due consideration granted said motion and entered an order on March 23, 1953, modifying the original judgment by giving the defendant custody and control of the children during the school year and the father during the vacation period. From that order this appeal is perfected.

The question of where to place the custody of the children of a broken home is one of the most difficult problems that comes before the courts. They are the innocent victims of the unfortunate circumstances in which the parents have become involved. They are usually not of an age where they can appreciate the situation nor decide what is best for themselves. The parents are prejudiced against each other. Therefore, that decision must be made by the court. The principal concern of the court must be what is best for the children. The interests of the parents can be considered only to the extent of how their interests bear on the question of what is best for the children. When, at the time of the divorce, custody of the children has been given to one of the parties, an application by the other for custody must be considered in the light of what has happened since the original decision; the attitude of the parties towards the children during that time and what, if any, changes there have been in the circumstances of the parties since the original order of custody was made. Keezer on Marriage and Divorce, 2d.Ed., p. 416, lays down the rule for modification of a decree as to custody as follows:

'Broadly stated, the controlling considerations are a change of circumstances, the conduct of the custodial party, the morals of the parents, their financial condition, the age of the children and the devotion of either parent to the best interests of the children.'

In Sjol v. Sjol, 76 N.D. 336, 35 N.W.2d 797, this court held that in a divorce action the custody of the children of the marriage should be awarded 'in accordance with the best interests of such children and such an award is subject to modification from time to time as the best interests of the children may require.' See Rufer v. Rufer, 67 N.D. 67, 269 N.W. 741; Schlak v. Schlak, 51 N.D. 897, 201 N.W. 832; King v. King, 61 N.D. 422, 237 N.W. 854; see also In re Sidle, 31 N.D. 405, 154 N.W. 277; Garrett v. Burbage, 55 N.D. 926, 215 N.W. 479.

'The paramount consideration in determining to whom the custody of a child shall be awarded after a divorce is the wefare and best interests of the child. To that welfare the rights claims, and personal desires of the parents, and even the wishes of the child, if opposed to that object, must yield.' 27 C.J.S., Divorce, Sec. 309 p. 1170.

'The father is generally entitled to custody of his infant children. This results from his obligation to maintain, protect, and educate them. This right is, however, neither unlimited nor inalienable. It continues no longer than it is properly exercised; and whenever abused or whenever the parent has become unfit, by immoral or profligate habits, to have the management and instruction of the children, courts of appropriate jurisdiction have not hesitated to interfere to restrain the abuse or remove the subject of such abuse from the custody of the offending parent.' 17 Am.Jur., Divorce and Separation, Sec. 673, p. 511.

The evidence discloses the following record of the parties since their separation.

Defendant claims that on going through Fosston, Minn., the day after she left she wrote her mother who lived near Shevlin, Minn., to get her boys. She claims further that soon after she got to Peoria she wrote to plaintiff telling him where she was and asking for custody of the boys. She claims she gave him a post office box number for use in writing to her. Plaintiff admits getting two letters from her but said she gave no specific address so that he could not answer. She claims to have written several times, and that she also wrote him in care of his mother. No further efforts seem to have been made by defendant in regard to her boys until late in 1951.

After she arrived in Peoria defendant worked in a dry-cleaning establishment for a year, then did some work as a waitress in a restaurant. Finally she bought a restaurant business which she was operating at the time of the trial claiming a net income of between $350 and $400 a month. On June 14, 1952, she married one Mr. Herbert Piercey, an electrician with the Caterpillar Tractor Company, making about $80 per week. They lived at the time of the trial in a three-room apartment in the City of Peoria.

The defendant, now Mrs. Piercey, claims that she first learned of the Hedman divorce when she read in a Bagley, Minn., paper of the plaintiff's remarriage in the summer of 1951. Then she says she immediately drove in her car to Minnesota to see her children. She found one of the boys with his grandmother, Mrs. Hedman, the other was away somewhere. She claims she began then to take steps to get her children back but that she had difficulty in finding where the judgment of divorce had been entered. Such efforts, however, culminated in these proceedings. She again visited in Minnesota and saw her boys at the Hedman farm in July, 1952, at which time she had their pictures taken and gave each of them a new swimming suit. She also claims to have sent them two suits of clothes at the time of their birthdays and that she had given them a couple of dollars and some toys. That is all the showing she has made as to her interest in those boys since she left on October 16, 1948.

The defendant is supported in her application by Mr. Piercey, her present husband. He testified as to his own occupation and earnings and that he is agreeable to having the boys given to his wife and willing to contribute to their support. Defendant's only other witness is a Mr. Chadwick who has been a boarder in her restaurant for the last year or so and has heard nothing against her. He testified also that the restaurant was first class and was patronized by reputable customers. One Leo Schwabacher makes affidavit in behalf of defendant that she 'is of good, moral character and general fitness and that she is the Proprietor of a restaurant in the City of Peoria, Ill., and realizes a moderate profit from said business; * * * that Doris Piercey has the ability and means to take care of her two children, Carl Hedman and LeRoy Hedman; that she would be a fit person to have the care, custody and control of said children.'

It thus appears that the defendant, Mrs. Piercey, for almost two years after she left the plaintiff paid very little attention to her boys. S...