Holden v. Holden

• Decision Date: 24 September 1941
• Docket Number: 6945
• Citation: 63 Idaho 70,116 P.2d 1003
• Parties: MAURICE DEAN HOLDEN, Respondent, v. ALMA HARRIET HARTMAN HOLDEN, Appellant
• Court: Idaho Supreme Court

116 P.2d 1003

63 Idaho 70

MAURICE DEAN HOLDEN, Respondent, v. ALMA HARRIET HARTMAN HOLDEN, Appellant

No. 6945

Supreme Court of Idaho

September 24, 1941

DIVORCE-CRUELTY-CUSTODY OF MINOR CHILD-TRIAL-FINDINGS OF FACT-REVIEW.

1. A failure to find on a material issue tendered by the pleadings, upon which proof is submitted, is reversible error.

2. In husband's action for divorce, where wife's cross-complaint alleged willful desertion, failure for a period of more than a year to provide for wife the common necessaries of life, and cruelty, and evidence was introduced in support of such allegations, failure to find on issues tendered by cross-complaint was reversible error.

3. In divorce action, where chief contest between parties was over custody of four-year old child, testimony of witnesses absent from state could be used at the trial, and depositions or witnesses, or both, could be produced touching any matter within the issues, about which the parties might desire to submit proofs.

4. An intentional communication by husband to wife of a venereal disease would constitute "cruelty."

5. In divorce action, where it appeared that neither party was free from blame and responsibility for their present plight, each was required to exercise a degree of patience and forbearance which the law would not otherwise expect.

6. The district court, in a divorce action, may award custody of a minor child to one of the parties living beyond jurisdiction of the court in a proper case.

7. In divorce suit, custody of children must be determined by the best interests of the children.

8. In divorce suit, the mother is considered the best qualified to have custody of children of tender age and of young girls all other things being equal.

APPEAL from the District Court of the Ninth Judicial District, for Madison County. Hon. C. J. Taylor, Judge.

Action for divorce. Decree for plaintiff. From decree of divorce and order denying application for modification as to custody of minor child, defendant appeals. Reversed and remanded for a new trial.

Judgment reversed and a new trial granted. Costs awarded in favor of appellant.

W. A Ricks, for Appellant.

On an application for the custody of a minor child based upon a change of conditions since the entry of the decree, the welfare and best interest of the child are the controlling consideration. (Ruthruff v. Ruthruff, 52 Idaho 330; Sauvageau v. Sauvageau, 59 Idaho 190; Crieger v Crieger, 59 Idaho 301; Cheesbrough v. Jensen (Idaho) 109 P.2d 889.)

It is duty of trial judge to make findings upon each and every material issue upon which proof is offered, and its failure to do so is ground for reversal. (Cheesebrough v. Jensen (Idaho) 109 P.2d 889, and cases therein cited.)

In divorce suit, the mother is considered the best qualified to have custody of children of tender age and of young girls, all other things being equal. (Sauvageau v. Sauvageau (Idaho) 81 P.2d 731; Crieger v. Crieger (Idaho) 81 P.2d 1081.)

Extreme cruelty is the infliction of grievous bodily injury or grievous mental suffering upon the other by one party to the marriage. (I. C. A. sec. 31-605; Piatt v. Piatt, 32 Idaho 407; Morrison v. Morrison, 38 Idaho 45.)

The communication of a venereal disease constitutes cruelty, within the divorce statutes. (Morehouse v. Morehouse (Conn.) 39 A. 516.)

Mary Smith and W. Lloyd Adams, for Respondent.

The trial court has wide discretion in awarding the custody of children, and, unless it clearly appears that this discretion has been abused, its decision cannot be altered by the appellate court. (Baldwin v. Baldwin (Calif.) 295 P. 93; Bancroft v. Bancroft (Calif.) 173 P. 582; Cammack v. Cammack (Calif.) 272 P. 299; Brown v. Brown (Calif.) 268 P. 401; Miller v. Miller, (Colo.) 247 P. 567; Leach v. Leach, (Kan.) 27 P. 131; Bowles v. Bowles, (Mont.) 199 P. 912.)

AILSHIE, J. BUDGE, C.J., GIVENS, MORGAN and HOLDEN, JJ., concur.

OPINION

AILSHIE, J.

This appeal is from a judgment of divorce and an order made after judgment denying application for modification of the order for custody of a minor child. For convenience we will refer to the parties as plaintiff and defendant. In limine, we may observe that the parties to this action are in no wise related to Mr. Justice Holden of this court.

Plaintiff sought divorce on the ground of "cruel and inhuman" treatment. Defendant answered, denying the material allegations of the complaint; and for cross-complaint against plaintiff alleged: (a) wilful desertion; (b) failure, for a period of more than one year, to provide for defendant the common necessaries of life; (c) adultery; and (d) cruelty. The trial court found in favor of plaintiff on the charge of cruelty and failed to find on any of the grounds for divorce set up in defendant's cross-complaint. So far as we have discovered, the charge of adultery by plaintiff was not sustained. There was evidence, however, introduced on the other causes of action alleged by defendant.

It is a uniform established rule in this court, that a failure to find on a material issue tendered by the pleadings, upon which proof is submitted, is reversible error. (Cheesbrough v. Jensen, 62 Idaho 255, 109 P.2d 889, and cases therein cited.) For these reasons, it will be necessary to reverse the judgment and remand the case to the trial court.

In view of the fact that the judgment must be reversed and the cause be remanded, and the further fact that it is more than a year since the court heard the testimony and saw the parties; and that in the meanwhile an application has been made for modification of the order awarding the custody of the child; and, in view of the further fact, that an order awarding the custody of a minor does not become final and that application for modification may be made or renewed from time to time, (Sauvageau v. Sauvageau, 59 Idaho 190, 195, 81 P.2d 731) we have concluded that it will be to the best interests of all concerned and will best promote the ends of justice, to direct that this case be retried.

There are many things about this case that render it very peculiar and unusual. The trial judge fully appreciated the situation and gave some expression to his misgivings about the case in a memorandum opinion which he furnished counsel prior to making his findings of fact and entering a decree. Among other things, he said:

"Other things being equal, I have always taken the view that the custody of children, particularly those of tender years, should be with the mother, because it is there alone that they can get the tender intimate and affectionate care that a mother can give, and that such children need. However, in this case I find the child in a comfortable home where it will receive all necessary care, if not the best. On the other hand I am confronted with the possibility that the defendant may not find the way to a better life which she has now chosen to be as easy as she anticipates, particularly for one who has once transgressed. She will be imposed upon because of her past, and her sister's family will not shield her nor help her, and I am afraid that if the way gets tough, she may justify herself in departing from the high resolve she has now made. I am also conscious of the fact that the custody of the boy would be a help to her; that the responsibility would assist her in maintaining a proper way in life. But, it is not the mother's interest but that of the child that the court must consider."

Other courts have had to deal with very similar problems as may be seen in Abel v. Ingram, (Mo.) 24 S.W.2d 1048.

These parties were married when the defendant was only sixteen years of age. They had been "going together" for about one year prior to their marriage and, according to defendant's testimony, plaintiff had illicit relations with her some six months prior to their marriage. So, according to her testimony, he not only violated the criminal laws of the land (sec. 808, Code, Dist. of Columbia) but the moral standards of society as well, in his relations with her prior to their marriage.

Great stress, in plaintiff's brief, is placed on the conduct of defendant in reference to her relation with one Delaney and her bearing a child by him. Proof of that fact was introduced by plaintiff, not in support of a charge of adultery but in support of the charge of cruelty; and the proof thereof appears to have influenced the trial judge in making his findings in regard to cruelty. As we view the matter, Delaney was the arch offender in this case and ought to have been brought before some criminal court that would have given him the limit of the law; but he is not before us and we are left to deal, as best we can, with his victims--plaintiff and defendant.

The chief contest, however, between the parties here, is over the custody of the minor child, Carl Holden, who is now past four years old. The memorandum opinion of the trial judge was made a few days after the conclusion of the trial in July, 1940, but the findings and decree were not entered until February 15, 1941. Motion for modification of the decree for custody of the child was made May 9th upon affidavits. No counter showing was made and, on May 9th, the judge made an order denying the motion.

A very thorough and careful examination of this record and the exhibits convinces us that a further investigation and examination should be made with regard to the facilities and opportunities the respective parties have for taking care of this child in the future and property training and bringing it up. It is therefore thought to be to the best interest of all concerned to have the case retried. The testimony of witnesses absent from the state may be used at the trial; (State v. Brassfield, 40 Idaho 203, 232 P. 1...