Huckfeldt v. Huckfeldt

• Decision Date: 02 November 1966
• Docket Number: No. 10294,10294
• Citation: 146 N.W.2d 57,82 S.D. 344
• Parties: Beulah Catherine HUCKFELDT, Plaintiff and Respondent, v. Carl HUCKFELDT, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 57

146 N.W.2d 57

82 S.D. 344

Beulah Catherine HUCKFELDT, Plaintiff and Respondent, v. Carl HUCKFELDT, Defendant and Appellant.

No. 10294.

Supreme Court of South Dakota.

Nov. 2, 1966.

Stephens, Riter, Mayer & Hofer, Pierre, for defendant and appellant.

Joseph H. Bottum, III, Pierre, for plaintiff and respondent.

HOMEYER, Judge.

Defendant father appeals from an order refusing to modify an amended decree of divorce under which he had been awarded custody of minor children for 10 months of each year and their mother, respondent herein, was awarded custody for 60 consecutive days during the summer nonschool interim. Reciprocal right of visitation was allowed to each parent during noncustodial periods.

The parties were married on November 17, 1954 and the marriage terminated with a default divorce granted to the plaintiff wife on January 30, 1962 and she was awarded full custody of the children with right of visitation permitted appellant at reasonable times and places. Kenneth was then 8 years of age; Carla, 6 years; Marilyn, 5 years; and Cheryl, 2 years. On August 22, 1963, an amended decree providing for divided custody as above set forth was entered upon the application of appellant following an extensive hearing at which affidavits were read and oral testimony presented. No appeal was taken from such amended decree by either party and the children were delivered to appellant following the entry thereof. Respondent had custody of the children for 60 days during the summer of 1964 as provided therein.

On February 4, 1965, appellant secured an order requiring respondent to show cause why the amended decree of August 22, 1963, should not be further modified and amended to eliminate respondent's custodial rights during the summer months. On March 10, 1965, respondent obtained an order requiring appellant to show cause why said amended decree should not be again amended to restore full custody of the children to her. The two show cause orders were heard simultaneously and the trial court denied both applications. The mother has not appealed.

The only question for us to decide is whether the trial judge abused his discretion when he denied appellant's motion to further modify the amended decree of August 22, 1963. We hold no abuse of discretion has been shown.

The applicable legal principles are well settled by our decisions. The welfare of the hcildren is of paramount consideration and superior to the legal rights and claims of either parent. Hoaas v. Hoaas, 75 S.D. 55, 59 N.W.2d 254. The personal wishes and desires of the parents must yield to what the court in the discharge of its duty regards as the best interests of the children. Ulver v. Ulver, 76 S.D. 371, 78 N.W.2d 830. The trial court is permitted a wide discretion, and its discretion will not be disturbed on appeal in the absence of a showing of a manifest abuse, and every presumption supports the reasonableness of the decree. Weygand v. Weygand, 68 S.D. 1, 297 N.W. 689; Larson v. Larson, 70 S.D. 178, 16 N.W.2d 307; Wright v. Stahl, 73 S.D. 157, 39 N.W.2d 875; Nelson on Divorce and Annulment, 1961, Revised Edition, Vol. 2, § 15.50.

Our decisions consistently hold that following the fixing of custody of minor children by a divorce decree, or by an amended decree, there can be no change with respect to custody except upon a showing of changed conditions since the entry of such decree, Application of Habeck and McGuire, 75 S.D. 535, 69 N.W.2d 353, and a modification is justified only if such subsequent conditions have so changed that the welfare of the children demands or at least makes expedient the modification. Ulver v. Ulver, supra. An award of custody is res adjudicata under conditions existing when made and a material or substantial change of circumstances must be established to invoke the power of the court to modify under SDC 14.0724. Wellnitz v. Wellnitz, 71 S.D. 430, 25 N.W.2d 458. The rule of 'changed circumstances' is not statutory, but a creature of judicial expediency. Its purpose is to protect the court, the parties, and the children from continuing vexatious litigation on questions of custody. Admittedly the welfare of the children is of primary importance, but when it is once decided, and the custodial order is made, it will not be overturned unless a substantial and material change of circumstances has occurred. Any other interpretation would result in endless litigation and continual uncertainty. The burden to show a change of circumstances rests with the party seeking modification. Wellnitz v. Wellnitz, supra. While proof of a change of conditions is a prerequisite to modification of a custody decree, such proof does not necessarily require modification. The mere fact that conditions have changed since the entry of the decree is not sufficient it itself to warrant modification. There must be a showing of a material and substantial change of circumstances affecting the welfare of the children to a substantial or material extent and the two issues are closely intertwined. 27B C.J.S. Divorce § 317(2), p. 539; Ulver v. Ulver, supra.

The evidence submitted to the trial...