Jackson v. Jackson, 40231

• Decision Date: 06 April 1957
• Docket Number: No. 40231,40231
• Citation: 181 Kan. 1,309 P.2d 705
• Parties: Leon JACKSON, Appellee, v. Vena Irene JACKSON, now Vena Irene Jackson French, Appellant.
• Court: Kansas Supreme Court

Page 705

309 P.2d 705

181 Kan. 1

Leon JACKSON, Appellee, v. Vena Irene JACKSON, now Vena Irene Jackson French, Appellant.

No. 40231.

Supreme Court of Kansas.

April 6, 1957.

Syllabus by the Court

1. The record examined in appeal from an order changing the custody of minor children wherein the court allowed evidence and made findings pertaining to wife's religion--held, the court abused its discretion in allowing the matter of religion to become an integral part of its decision to change custody.

2. The jurisdiction of the district court over minor children is a continuing one and its orders concerning the custody, control or support of the minor children may be changed from time to tiem as conditions require.

3. In the matter of the care, custody and control of minor children the paramount consideration of the court is and must be the welfare and best interests of the children.

4. The trial court is the best judge of the interests of the minor children and in the absence of abuse of sound judicial discretion in awarding the custody, care and control of minor children, the judgment of the district court will not be disturbed on appeal. However, where such an abuse is affirmatively shown in the record, this court may reverse, modify or otherwise change the order of the district court.

5. Following Denton v. James, 107 Kan. 729, 193 P. 307, 12 A.L.R. 1146, the question of religion cannot be regarded by the court in determining the care, custody and control of minor children. The courts have no authority over that part of a child's training which consists in religious discipline, and in a dispute relating to custody, religious views afford no ground for depriving a parent of custody who is otherwise qualified.

6. Religious freedom, as guaranteed by our Constitution, should be faithfully upheld, and religious teachings to the children by a parent or parents, regardless of how obnoxious the same might be to the Court, the other parent or the general public should not and must not be considered as basis of making child custody orders.

7. Under the provisions of G.S.1949, 60-1507, a wife is entitled to attorney fees for 'the efficient preparation of her case' in divorce, alimony and custody actions. The acceptance of attorney fees in such cases does not come within the rule of acquiescence in the benefits of a judgment. An acceptance of such fees does not constitute a waiver of the right of appellate review.

Richard A. Hickey, Liberal, Hayden C. Covington, Brooklyn, N. Y., Collis R. Harner, Dodge City, Rex A. Neubauer, Liberal, on the brief, for appellant.

Chas. Vance, Liberal, H. Hobble, Jr., and Chester A. Nordling, Liberal, on the brief, for appellee.

HALL, Justice.

This is an appeal from an order of the district court changing the care, custody and control of minor children.

Leon Jackson, appellee herein and as plaintiff, filed an action for divorce against Vena Irene Jackson (now French), defendant and appellant herein. On defendant's cross petition Vena Irene Jackson was awarded a divorce from plaintiff, a division of the property and the care, custody and control of the three minor children; Stephen age 7, James age 5, and Dianne age 3.

The court gave the plaintiff the right of visitation at reasonable times, the further right to have custody for a period of 60 days during June and July of each year subject to the right of visitation by defendant during that period. The court further ordered the plaintiff to pay $50 a month for the support of each child until the child should become of legal age and retained jurisdiction for any further orders.

The plaintiff previously appealed to this court from that portion of the judgment awarding custody of the children to the defendant. Jackson v. Jackson, 175 Kan. 418, 264 P.2d 1087.

In that case, plaintiff specified as error the district court's order awarding the custody of the minor children to the defendant and the overruling of his motion for a new trial. This court affirmed the judgment of the trial court.

On July 28, 1955, the plaintiff filed a motion for a change in the order of the custody of said minor children.

On August 9, 1955, defendant filed a motion for allowance of attorney fees and August 29, 1955, defendant filed her answer to plaintiff's motion to change custody of minor children and requested the court to make findings of fact and conclusions of law.

On September 5, 1955, the time set for hearing, defendant filed a motion for continuance of the matter which was overruled by the court. Defendant moved the court in accordance with G.S.1949, 60-2924, that upon concluding the evidence of the witnesses present in court that the court continue the matter until she could procure the evidence of two of her chief witnesses and that 15 days would be adequate. The court denied the continuance but ordered the affidavits submitted in the motion to be admitted as the testimony of the missing witnesses, Dr. LeNeve and Mrs. Helen Johns. Plaintiff admitted the contents of said affidavits as to what the witnesses would testify but denied its truth, materiality, relevancy and comnpetency.

On or before December 24, 1955, the court gave tentative findings of fact and conclusions of law with notice that judgment accordingly would be entered at the regular January motion day in Richfield on January 3, 1956.

On December 24, 1955, defendant filed a motion for additional findings of fact. A motion was also filed to strike portions of the court's proposed findings of fact and conclusions of law.

The final findings of fact and conclusions of law of the court were filed on January 16, 1956. Judgment was presumably entered by the court on January 6, 1956.

On January 5th, defendant again filed motions directed against the court's findings and conclusions and on January 6th filed a motion for new trial and for stay of execution during appeal to the Supreme Court.

The Journal Entry of judgment filed January 16, 1956, changed the care, custody and control of said minor children from the defendant to the plaintiff subject to the reasonable rights of visitation in favor of defendant. The court also awarded judgment against the plaintiff and for the defendant in the amount of $300 for attorneys fees and expenses of her attorneys.

The court further heard the motions of defendant for additional findings of fact, to strike certain portions of the amended findings of fact and conclusions of law, the motion for stay of execution and the motion for a new trial.

The court sustained two portions of defendant's motion for additional findings of fact and overruled the balance of said motions. The motions for stay of execution and for new trial were overruled.

The court retained jurisdiction over the subject matter of the custody of the children as to modifications and changes of orders as may in time over necessary.

Defendant makes five specifications of error.

It is only necessary to consider the first specification. As appellant aptly states in his brief:

'This assignment of error is the 'meat' of the lawsuit. Appellant contends that the real, underlying reason for depriving her of custody was her membership in Jehovah's Witnesses and training the children in that faith. The entire 'emotional instability' argument against her, as previously shown, was a mere subterfuge to cover up infringement upon Appellant's religious freedom. A critical reading of the record bears this out.'

This specification of error is as follows:

'(A): The Trial Court committed a substantial abuse of its judicial discretion in making these orders, as the record overwhelmingly showed fitness of the Appellant, mother of said children, to remain their custodian, and there was no evidentiary basis for the following findings of the Court upon which its decision and judgment was predicated, namely:

'1. That Appellant suffered from nervous instability, emotional abnormality and psychopathic tendencies, which were being communicated to the three children.

'2. That the 'environment' of the children under custody of Appellant (i. e., being raised in the faith of Jehovah's Witnesses and associating to a considerable extent with Jehovah's Witnesses) was improper and not so stable and normal a home life as the children could have in the custody of Appellee and the stepmother, both of whom are not Jehovah's Witnesses.

'That in this latter finding above the Court violated the tenets and precepts of the First and Fourteenth Amendments of the Federal Constitution and Section 7 of the Kansas Bill of Rights, guaranteeing religious freedom and cases interpretive thereof that no religion should be preferred above another, providing there was nothing subversive to the United States of America or the principles of common decency in the teachings thereof. While the Trial Court paid lip service in its Findings and Conclusions to the above Constitutional Law Principles, it went absolutely contrary to them in its determinations of this case * * *'

While a reading of the entire record of the case may not prove the element of subterfuge, the whole question of religion so permeates the record that this court believes defendant's specification of error is well taken.

Religion was inherently in the case from its very inception. While plaintiff's motion for change of custody did not specify grounds, it was alleged in defendant's answer that plaintiff's counsel stated the allegations of plaintiff's motion were based upon the following facts:

'(A): That Defendant allegedly is a person of emotional instability and psychopathic tendencies to the extent such alleged condition renders her an unfit custodian of said children.

'(B): That Defendant is allegedly a poor housekeeper, cook and caretaker of the children, nags at said children, and keeps them both emotionally upset and in a manner that is not conducive to their physical well being.

'(C): That by virtue of the fact Defendant is an admitted member of Jehovah's...