Hendricks v. Hendricks

• Decision Date: 18 May 1949
• Docket Number: 7515
• Citation: 69 Idaho 341,206 P.2d 523
• Parties: HENDRICKS v. HENDRICKS
• Court: Idaho Supreme Court

206 P.2d 523

69 Idaho 341

HENDRICKS v. HENDRICKS

No. 7515

Supreme Court of Idaho

May 18, 1949

Appeal from District Court, Fifth Judicial District, Bannock County L. E. Glennon, Judge.

Order affirmed.

P. A McDermott, of Pocatello, for appellant.

A charge of fraud in obtaining a judgment of divorce must, in order to sustain a bill in equity to set it aside be established by the clearest and most satisfactory evidence. Bayer v. Wysinger, 159 La. 155, 105 So. 273; Whittaker v. Whittaker, 151 Ill. 266, 37 N.E. 1017; Hakes v. Brown, 213 Mich. 278, 182 N.W. 77; Don v. Don, 158 Ga. 254, 123 S.E. 268; Wagley v. Wagley Tex.Civ.App., 230 S.W. 493; 27 C.J.S., Divorce, § 169 b, page 810; Godfrey v. Godfrey, 30 Cal.App.2d 370, 86 P.2d 357; Thompson v. Thompson, 38 Cal.App.2d 377 101 P.2d 160.

A judgment cannot be impeached in part only, where the fraud claimed affects the whole judgment. Le Baron v. Le Baron, 23 Ariz. 560, 205 P. 910.

To justify a substantial modification of the decree awarding custody of the children, there must be shown a change of circumstances, or the discovery of material facts existing but unknown to the court, at the time of the rendition of the decree. 27 C.J.S., Divorce, § 317, pages 1188 and 1190; Gotthelf v. Gotthelf, Ariz., 300 P. 186; Maudlin v. Maudlin, 1948, 68 Idaho 64, 188 P.2d 323.

C. M. Jeffery, of Pocatello, for respondent.

The modification of a divorce decree awarding children is separate proceeding after judgment and has no effect on portion of decree dealing with issue of divorce. Cooney v. Cooney, 25 Cal.2d 202, 153 P.2d 334.

In awarding the custody of a minor child of divorced parents to either parent, child's welfare is of paramount importance. Kirkpatrick v. Kirkpatrick, 52 Idaho 27, 10 P.2d 1057.

Roosma v. Moots, 62 Idaho 450, 112 P.2d 1000; Maudlin v. Maudlin, 68 Idaho 64, 188 P.2d 323.

Fraud or imposition is universally recognized a sufficient ground for setting aside a decree, and a decree may be set aside for fraud, although an innocent person will be injuriously affected thereby. 27 C.J.S., Divorce, § 169, page 810; Leeker v. Leeker, 23 Ariz. 170, 202 P. 397; Matthews v. Matthews, 73 Colo. 597, 216 P. 704.

Taylor, Justice. Holden, C. J., and Givens, Porter and Keeton, JJ., concur.

OPINION

Taylor, Justice.

In August, 1947, appellant and respondent, then wife and husband, separated. They had been living at the home of the wife's parents at McCammon, Idaho. The husband went to San Francisco to associate himself with a certified public accountant in order to enable him to qualify for certification. The wife and two children remained at the home of her parents in McCammon. In November, 1947, the appellant went to Rapid City, S. D., to visit her sister, taking the children with her. She remained there until February, 1948. Early in February she wrote respondent from Rapid City to the effect that she had met another man whom she preferred and that she wanted a divorce. Under date of February 16, she again wrote him as follows:

"Dear Payne.

"I'm writing again to let you know what my plans are.

"I visited a lawyer today & found that I would have to go back to Idaho to get my divorce if I wanted it before a years time. I can get one there in only a few weeks. It's like in Nevada. He also said they would grant the children to me because they are so young. This won't change the plan for you to take Nancy, though. I couldn't be that cruel to you * * *."

"I've written Phynis to see what her plans are and to ask her if she'll care for Nancy for you. I wouldn't want to trust anyone else with her. Find a place for them & as soon as she calls for Nancy she can take her to you. There's another thing -- if your mother has anything to do with her or tried to interfere in any way I want her back immediately.

"I'm leaving tomorrow for Idaho so you may get the papers within a week or so to sign & that's about all there will be to it. I don't think I've ever been unfair in any way in our marriage and I'm so sorry nothing worked out the way we had planned. I do hope you can find some happiness yet. I think I will -- I have every chance to except for giving Nancy up. But I will get a little joy out of that if I know you will be happy."

The Nancy referred to is Nancy Lee Hendricks, the older of the two children. At the time of the hearing in the trial court she was four years of age.

In response to appellant's letters, respondent wrote at least two letters to her in which he advised her that he would not appear and contest her suit for divorce, provided he were given custody of Nancy. These letters were not produced at the trial. Appellant testified that she burned them.

Appellant returned to Idaho, after writing the letter of February 16th, and filed her suit for divorce in Bannock County, on February 20th. Summons was served on respondent in San Francisco on February 25th. While the divorce suit was pending appellant wrote respondent among other things as follows: "All isn't lost for you, Payne. You'll have Nancy & Phynis soon and I will no longer be a burden to you. Nancy will give you more pleasure than you can ever imagine. She is so sweet and more intelligent than the average child her age. Success in your work is very important now for you and Nancy's welfare so please dont let yourself worry about the outcome of things -- You know I will never be unfair."

The respondent did not appear, and decree of divorce was entered against him on March 17, 1948, in which the custody of both children was awarded to the wife. Appellant returned to Rapid City and married the man mentioned in her letters about a week later.

Respondent was not furnished a copy of the decree, and did not know that custody of both children had been awarded to appellant until about the first of April when he went to Rapid City to take custody of Nancy. Upon his arrival there the appellant, then married, told him she had changed her mind and would not let him take Nancy. He says he then told her that if she did not let him have the child, in keeping with her agreement, he would go to Pocatello and move to vacate the decree. She denies this and says she told him she would let him take the child temporarily if he would agree to its adoption by her then husband. Be that as it may, after considering the matter overnight, and consulting an attorney, she let respondent take the child. Respondent then took Nancy to San Francisco and placed her in the immediate care of his sister, Phynis Donahue, with whom he then lived. A move to Phoenix, Arizona, was determined upon because of the sister's health, and the child and sister went to the home of respondent's parents at Lava Hot Springs to stay until he could locate a job and living quarters in Phoenix. While at Lava the child was demanded by appellant, but the sister spirited her away to Phoenix. There Nancy was living with her father and aunt, when, on or about the 17th of August, 1948, appellant came by the home and picked her up and carried her away.

On September 9th respondent filed a petition in the original divorce action asking the court to modify its decree and award the custody of the child, Nancy Lee, to him, on the grounds that appellant had fraudulently induced him to forego his right to defend and claim the custody of the child, in the divorce proceedings, and that it is for the best interests of the child that custody be awarded to him. After a hearing, the court on November 18, 1948, entered its order modifying the decree by awarding custody to respondent. By stipulation between counsel findings of fact and conclusions of law were waived. However, the order recites as findings of the court:

" That the plaintiff had fraudulently represented and promised the defendant that the decree would provide that the custody of the minor child, Nancy Lee Hendricks, would be awarded to the defendant; which representation was made before the action was filed and during the pendency of the action, and was relied upon by the defendant who permitted a default to be taken, and that the plaintiff failed to keep said promise and did not advise either her counsel or the court of said promise and that a decree was entered without the court being advised of said promise, that the said minor child be awarded to the custody of the plaintiff.

"The court further finds that the defendant is a fit and proper person to have the custody of said minor child, and that his financial condition is sufficient to properly care for said child, and that it is for the best interests of said minor child that she be awarded to the custody of the defendant until further order of the court."

This appeal is from the order. The finding of fraud is assigned as error on the ground that the evidence is insufficient to sustain it. It is apparent that the letters written by appelleant were well calculated to lead respondent to believe that, although her attorney had told her "they would grant the children to me because they are so young," she would nevertheless voluntarily consent to the award of the custody of Nancy Lee to him. She told him he would have Nancy and that she was "giving Nancy up." Although she burned his letters, it appears from her testimony that she knew he would appear and defend if she did not agree to his having custody of Nancy.

Such an agreement between the parties will not control the decision of the court. Keyes v. Keyes, 51 Idaho 670, 9 P.2d 804; 27 C.J.S., Divorce, § 311, page 1177. However, it will be respected if in harmony with the welfare of the child. And it is a fact which should have been made known to the court, to be by it considered along with the other facts in determining the custody of the child. Appellant complains that the evidence does not...