Keyes v. Keyes

• Decision Date: 21 March 1932
• Docket Number: 5829
• Citation: 9 P.2d 804,51 Idaho 670
• Parties: EDWARD L. KEYES, Respondent, v. NINA R. KEYES, Appellant
• Court: Idaho Supreme Court

9 P.2d 804

51 Idaho 670

EDWARD L. KEYES, Respondent, v. NINA R. KEYES, Appellant

No. 5829

Supreme Court of Idaho

March 21, 1932

DIVORCE - PROPERTY SETTLEMENT AGREEMENT - SUPPORT OF MINOR CHILD.

1. Where divorced husband paid attorney's fees and costs ordered by court, reference to them should be stricken from transcript on appeal by former wife from order denying modification of divorce decree.

2. Husband and wife may agree as to custody and maintenance of children, but cannot by contract shift duty imposed by law on parents to support and educate children.

3. Property settlement incorporated in divorce decree held void as to child so far as it attempted to relieve father of liability to support while with mother.

4. Where all evidence below was in form of affidavits, supreme court is in as good position as lower court to judge of its weight and credibility.

5. In contest between divorced parents involving support of minor child, child's welfare is paramount consideration.

6. Evidence held to require that divorce decree be modified so as to provide monthly payments of $25 for support of minor child by father while in mother's custody.

APPEAL from the District Court of the Sixth Judicial District, for Bingham County. Hon. Ralph W. Adair, Judge.

Appeal from order denying application of appellant to modify decree of divorce to provide for allowance for support of minor child. Reversed and remanded, with instructions. Motion of respondent to strike parts of transcript. Granted.

Reversed and remanded, with instructions. Costs awarded to appellant.

Walter H. Anderson, for Appellant.

Where a divorce decree gives the custody of a child to the mother and, by agreement of the parties, inadequately provides for the support of such child, such child may make application to the court for relief. (Lewis v. Lewis, 174 Cal. 336 163 P. 42; Wilson v. Wilson, 45 Cal. 399.)

A decree based on an agreement as to the amount of support for a minor child does not prevent the court from compelling the father to pay a larger amount if the amount agreed upon proves inadequate. (46 C. J. 1260.)

Carl C Christensen, for Respondent.

The court may disregard a stipulation between parents as to the custody of their child in a divorce case, and may at any time vacate or modify a decree for the custody of a child, even though such decree adopts the agreement of the parties. In making a change in such decree the court will consider only the best interest of the child. (C. S., sec. 4643; Hay v Hay, 40 Idaho 159, 232 P. 895; Olson v. Olson, 47 Idaho 374, 276 P. 34; Black v. Black, 149 Cal. 224, 86 P. 505.)

BUDGE, J. Lee, C. J., and Givens, Varian and Leeper, JJ., concur.

OPINION

BUDGE, J.

On November 19, 1930, respondent was granted a divorce from appellant on the ground of extreme cruelty. Prior to the hearing of the divorce action a property settlement agreement, hereinafter particularly referred to, was entered into between the parties, approved by the court and made a part of the decree, which agreement provided that all of the community property should be transferred to appellant in full settlement of all future demands of appellant and a minor child of the parties for their maintenance and support. The custody of the minor child was awarded to appellant, except during certain periods. On May 29, 1931, appellant made a motion in the trial court, seeking a modification of the decree theretofore entered so as to require respondent to pay $ 40 per month for the support and maintenance of the minor child and for attorney's fees for the prosecution of the motion, which motion was denied, except that the order gave appellant the option of surrendering the custody of said minor child to respondent, and provided that upon the exercise of such option respondent should support, maintain and educate said minor child. From said order this appeal is taken.

Thereafter a motion was made by appellant in the trial court for the allowance of attorney's fees and costs on appeal, which was granted. This motion and order of allowance are incorporated in the transcript. A motion has been made to strike all matters relating to the allowance of attorney's fees and costs on appeal. Since it appears that the attorney's fee has been paid, together with costs incident to the appeal, and these matters were not called for in the praecipe, and from which order no appeal has been taken, respondent's motion to strike is therefore granted.

The property settlement agreement between the parties provides:

" . . . . and the party of the second part, Mrs. Nina R. Keyes, hereby agrees that she will take, and accept said real estate in full, final, and complete settlement of any and all demands upon the party of the first part, for the future support and maintenance of herself and the minor child named herein, and that she accepts said property from the party of the first part, and agrees to use said property and the income therefrom for the support, maintenance and education of the minor child of the parties hereto, provided only that the husband, party of the first part shall, and hereby agrees to defray and pay all costs and expenses of the support and maintenance of said minor child during any and all times that said minor child may be in his possession as agreed to herein, and further that should the said minor child be in the possession of the party of the first part, and under his care and control, at any other time in addition to the times agreed upon herein, the said party of the first part will pay and defray all the expenses for his support, during any and all the time that he may have him in his custody and under his control. . . .

"The above arrangement as to property given for the support of the party of the second part and for the support of the minor child, shall be in full discharge of all liability of every kind, on the part of Edward L. Keyes, towards the maintenance and support of both Nina R. Keyes, and Clement P. Keyes, and neither of said parties shall have the right hereafter, to pledge the credit of said husband for anything whatever. . . . "

By the decree of divorce said property settlement agreement was found to be just and equitable by the court and the property was ordered transferred as therein provided, the decree reciting:

"It is further ordered, adjudged and decreed, . . . . that said property be and hereby is given to the defendant in full, final and complete settlement of any and all demands upon Edward L. Keyes for her support and maintenance and for the support and maintenance of the minor child of the parties named hereinafter, during such times as said minor child shall or may be in the custody of the defendant. . . .

"It is further ordered, adjudged and decreed, that the defendant, Nina R. Keyes be and hereby is given the custody and control of the minor child of the parties, a boy, named Clement P. Keyes, age 12 years, during all of the time of each year that he may be attending school, and that the plaintiff, Edward L. Keyes, be and hereby is given the custody and control of said minor child during all the periods of each year that school is in vacation or recess, and that each of the said parties shall have the right to see and visit with and have access to said minor child at all reasonable times and places. That the plaintiff, Edward L. Keyes shall pay for the support and maintenance of said minor child at all times when he shall have said child in his custody and control and that the property given to the defendant, and the income therefrom, shall be used by her for the support, maintenance and education of said minor child during all of the times that she may have the custody of said child, and that said property shall be and hereby is given to her in full settlement of any and all claims upon the plaintiff for the future support and maintenance of said minor child while in the custody of said defendant."

Thus, the parties, by their agreement, and the court by its decree, based thereon, attempted to release respondent from further liability for the support and maintenance of the minor child, except when he was in his custody, and the validity of that portion of such agreement and decree is thus presented for consideration. The general rule would seem to be that as between the husband and wife, an agreement touching the custody and maintenance of the children will be respected and enforced, yet such an agreement cannot, as against the children, divest either parent of the paramount duty imposed upon both by law to support and educate them. (Brice v. Brice, 50 Mont. 388, 147 P. 164.) As said in Karlslyst v. Frazier, 213 Cal. 377, 2 P.2d 362:

"It was beyond the power of the parties to deprive the court by their private contract of its right to make such suitable provision for the support of their minor child as her welfare required. ...