Hoagland v. Hoagland, 7284

• Decision Date: 21 June 1946
• Docket Number: 7284
• Citation: 67 Idaho 67,170 P.2d 609
• Parties: HOAGLAND v. HOAGLAND
• Court: Idaho Supreme Court

170 P.2d 609

67 Idaho 67

HOAGLAND v. HOAGLAND

No. 7284

Supreme Court of Idaho

June 21, 1946

Appeal from District Court, Eighth District, Boundary County; A. L Morgan, Judge.

Reversed with directions to dismiss application for modification.

J. H Felton, of Moscow, for appellant.

Under all normal conditions, the care, custody and control of a 7 1/2-year-old girl should remain in the mother. Kirkpatrick v. Kirkpatrick, 52 Idaho 27, 10 P.2d 1057; Krieger v. Krieger, 59 Idaho 301, 81 P.2d 1081.

W. J Nixon, of Bonners Ferry, for respondent.

It is well settled in this state that the welfare and best interest of the minor child is the "paramount consideration" and that the "child's welfare as a normal human being and future citizen is the polar star by which the court must be guided in awarding its custody." Roosma v. Moots, 62 Idaho 450, 112 P.2d 1000; Krieger v. Krieger, 59 Idaho 301, 81 P.2d 1081; Kirkpatrick v. Kirkpatrick, 52 Idaho 27, 10 P.2d 1057; Ruthruff v. Ruthruff, 52 Idaho 330, 14 P.2d 958.

In awarding custody of children the rights of the parents are subordinate to the welfare of the children, who should be kept together if possible and not denied each the others society. Smith v. Frates, 107 Wash. 13, 180 P. 880; Bornstine v. Bornstine, 21 Wash.2d 104, 150 P.2d 60, 62. 27 C.J.S. Divorces, § 308 (e).

Miller, Justice. Budge and Givens, JJ., concur. Ailshie, C. J., and Holden, J., did not sit at the hearing or participate in the opinion.

OPINION

Miller, Justice.

February 25, 1944, on the complaint of Donald J. Hoagland, respondent, then plaintiff, against Margaret Hoagland, appellant, then defendant, a decree of divorce was made and entered by Judge Bert A. Reed, and filed in Boundary County, Idaho. In said decree it was ordered, adjudged and decreed that the care, custody and control of Marilynn Joan Hoagland, a minor, six years of age, be granted and awarded to appellant, and it was further ordered, adjudged and decreed that the respondent pay to appellant the sum of $ 25 per month for the care and support of said minor child until she attain the age of ten years, after which the respondent was to pay appellant for said child's support the sum of $ 35 per month until said child attains her majority. The decree also provides that a property settlement between the parties is confirmed.

August 10, 1945, respondent filed an application, supported by affidavit, for modification of the decree of divorce and requesting that there be awarded to him the care, custody and control of Marilynn Joan Hoagland, formerly awarded to appellant. The hearing on said application for modification was before Judge A. L. Morgan. On October 24, 1945, filed October 26, 1945, Judge Morgan made and entered an "Order Modifying Decree," and in which it is shown that findings of fact and conclusions of law having been heretofore made and entered herein, "It is hereby ordered, adjudged and decreed, and this does order, adjudge and decree, that the decree of divorce heretofore made and entered in said cause on the 25th day of February, 1944, be and the same hereby is, modified to the extent that the care, custody and control of Marilynn Joan Hoagland be, and the same hereby is, changed to and granted to the plaintiff, Donald J. Hoagland, effective on and after the 12th day of January, 1946, and until further order of the district court." Liberal terms for visitations are provided.

Both appellant and respondent remarried shortly after the decree of divorce. The appellant now resides at Grangeville, and respondent near Bonners Ferry, Idaho. The chief cause for the modification of the decree seems to be based upon the ground that Donald J. Hoagland, Jr., a minor, then twelve years of age, who was awarded by the decree to respondent, and Marilynn Joan Hoagland, are very much attached to each other and their separation causes a great deal of nervousness on the part of both minors, especially after they are together and then separated again.

Margaret Hoagland Magnuson, appellant, testifying in her own behalf; shows:

"Q. There was an order in the divorce decree that your former husband, Mr. Hoagland, should pay you $ 25.00 a month for Marilynn. Has that been paid? A. No.

" Q. Have you asked for it? A. Yes.

"Q. What were you told? A. To see his lawyer.

"Q. Who has supported Marilynn since you married? A. Mr. Magnuson."

In her counter-affidavit is the following: "Defendant further prays that the plaintiff be required in this proceeding to show cause, if any there be, why he should not be adjudged in contempt of this court for failure to comply with the decree thereof in the payment of support money for his child, and in other particulars."

In Paragraph XII of the findings is the following: "There is no pleading and no evidence in this case that permits the making of any order or judgment with reference to the past due payments of support money."

Irrespective of what the trial judge may have had in mind, the record shows that respondent had made none of the monthly payments ordered in the decree of divorce, nor had he applied to the court to be relieved from making the same. His failure to make the payments placed him in contempt and he was not entitled as a moving party to any consideration until purged of the contempt. As was said in the recent case of Brown v. Brown, 66 Idaho 625, 165 P.2d 886, 887:

"In the second place, being in default, therefore in contempt, as was appropriately found by the trial Court, until purged of the contempt by...