Howells v. Howells
| Decision Date | 28 February 1962 |
| Docket Number | No. 9924,9924 |
| Citation | 79 S.D. 480,113 N.W.2d 533 |
| Court | South Dakota Supreme Court |
| Parties | Henrietta HOWELLS, Plaintiff and Respondent, v. Lewis W. HOWELLS, Defendant and Appellant. |
Keith B. Anderson, Huron, for defendant and appellant.
Temmey & Luby, Huron, for plaintiff and respondent.
The basic question on this appeal is whether the trial court's award to the mother of the custody of three children of tender years was proper. We hold it was not.
Plaintiff and defendant were married at Charleston, West Virginia, on January 31 1952. Their first child, a boy, was born on December 1, 1953; the second, also a boy, on September 26, 1955 and the third, a girl, on September 5, 1956. They lived in Virginia and Pennsylvania until July 27, 1959 when they moved with their children to Huron, South Dakota. During their residence in Virginia and Pennsylvania they had marital difficulties but these did not result in separation or litigation. In this respect the situation changed during their residence in South Dakota.
After being in the state less than a year, the usual requirement of residence for a divorce, plaintiff commenced this action against defendant on February 26, 1960, alleging extreme cruelty, apparently availing herself of the six months' residence requirement which is sufficient in those instances provided for in the last paragraph of SDC 14.0720. She requested a divorce, custody of the children and support for them and herself. On the institution of the suit he was compelled to move out of their home. Subsequently an order was entered giving plaintiff temporary possession of their home and custody of the children. Defendant was permitted to visit them and ordered to pay $180 a month for the support of plaintiff and the children, and $150 as costs and attorneys fees. Defendant answered denying her cause of action and counterclaimed for a divorce based on her extreme cruelty toward him and asked for custody of the children, alleging she was unfit to have their care and control.
With this action pending and untried, plaintiff on July 25, 1960 left the state with the children and went to Bethlehem, Pennsylvania. Before leaving and without consulting defendant, she disposed of their furniture which defendant asserts was worth $2,000, for $140. On stipulation of counsel trial of this matter was begun on September 30, 1960. Plaintiff did not appear nor was any evidence submitted in support of her cause of action, but her counsel was present and participated in the proceedings. In support of his counterclaim defendant testified as did a former neighbor of plaintiff and a young lady who had been with her on numerous occasions in her home and on visits elsewhere.
The judgment entered herein on October 31, 1960, dismissed plaintiff's complaint and awarded defendant a divorce and gave custody of the children to plaintiff, reserving to defendant certain visitation privileges. He was ordered to pay $15 a month for the support of each child while they were out of the state, which sum was increased to $35 during such times as they were in South Dakota. She was awarded the furniture and he got the remaining property consisting mainly of a doubtful equity in their home in Huron, which they were buying under a contract for deed. He appeals from the portions of the judgment concerning custody, support and the property division, contending that in these areas the trial court abused its discretion.
The substance of defendant's testimony is that plaintiff was nervous and irritable; that she was subject to attacks of temper and rage during which she abused the children physically; that she used vulgar and obscene language toward defendant in the presence of the children; that she was careless and indifferent as a housekeeper and mother; that she permitted the children to be unclean and inadequately clothed and did not prepare for them adequate or proper food; that she failed to supervise them or give them proper attention; that she often absented herself from the home, sometimes overnight, and that on many of these occasions she was in the company of other men, some of whom had criminal records, and several of whom she improperly entertained in her home; that the children grew to have an impulsive fear of their mother and wanted to be with him.
The testimony of the other witnesses, all of which stands undisputed in this record, supports and details the basis for these complaints. In addition, letters written by plaintiff in October 1959 are in evidence showing that she was even then frequently associating with other men and already planning to return to Bethlehem, Pennsylvania, the following summer where she wanted to see again a man whom she had gone out with before moving to South Dakota and whom she still professed to love. Neither of the two witnesses for defendant appear to have any interest in the question at issue. While some of the happenings about which they testified are rather shocking their statements are not grossly improbable. Consequently their testimony may not be disregarded. Crilly v. Morris, 70 S.D. 584, 19 N.W.2d 836.
That the trial judge did not disbelieve their testimony is apparent from the findings which he announced at the conclusion of the trial. At that time he said:
'The Court further finds that the plaintiff has been guilty of extreme cruelty toward the defendant; such cruelty consisting of the plaintiff using profane and abusive language toward the defendant; quarreling with the defendant; showing irritability with the defendant, and displaying a lack of affection for him.
'The Court further finds that such extreme cruelty consisted further of her association with a number of men other than her husband; such association including being with such men in bars, nightclubs and dance halls, entertaining such men in her home alone in the absence of her husband, and being with men other than her husband alone in parked automobiles, all constituting a course of extreme cruelty.
'The Court further finds that insofar as the children are concerned, that the plaintiff has failed to keep the highest standards of cleanliness...
To continue reading
Request your trial
-
Carpenter v. City of Belle Fourche
...the record. Id. The review must be of a ruling that both "involv[es] the merits" and "affect[s] the judgment." Howells v. Howells, 79 S.D. 480, 113 N.W.2d 533, 536 (1962). These requirements are met in this denial of summary judgment. The courts cited by the Carpenters are not governed by a......
-
Spaulding v. Spaulding
...Oursland v. Oursland, 83 S.D. 382, 159 N.W.2d 922 (1968); Wiesner v. Wiesner, 80 S.D. 114, 119 N.W.2d 920 (1963); And Howells v. Howells, 79 S.D. 480, 113 N.W.2d 533 (1962). SDCL 30-27-19 provides that in awarding custody of minor children the court is to be guided by the following (1) By w......
-
Hanks v. Hanks, s. 12744
...is the welfare and best interests of the children (citing) Larson v. Larson, 70 S.D. 178, 16 N.W.2d 307 (1944); Howells v. Howells, 79 S.D. 480, 113 N.W.2d 533 (1962). The mother would immerse and cloud our thinking with the liberal argument: "bad wife but not bad mother." The record disclo......
-
Anderson v. Anderson, 10934
...paramount to all others is the welfare and best interests of the children. Larson v. Larson, 70 S.D. 178, 16 N.W.2d 307; Howells v. Howells, 79 S.D. 480, 113 N.W.2d 533. In determining who should have custody a broad discretion is vested in the trial court and it is only when a clear abuse ......