Kienlen v. Kienlen
| Decision Date | 29 October 1948 |
| Docket Number | No. 34876.,34876. |
| Citation | 34 N.W.2d 351,227 Minn. 137 |
| Parties | KIENLEN v. KIENLEN. |
| Court | Minnesota Supreme Court |
Original proceeding by Loren C. Kienlen for a writ of prohibition to prevent further action by the district court for the Eighth judicial district Sibley County, and others, from taking further action on an order to show cause why an order awarding the custody of plaintiff's minor son to his mother Imogene M. Kienlen, plaintiff's divorced wife, since deceased, should not be modified so as to give the child's custody to his maternal grandparents and why plaintiff should not be held in contempt for failure to pay a monthly sum specified in the divorce decree for the child's support.
Alternative writ made absolute and proceedings respecting order to show cause annulled.
John B. Halloran, of Minneapolis (John P. Somers, of Minneapolis, of counsel), for plaintiff-relator.
Young & Gislason, of Gaylord, for defendant-respondent.
Original proceeding for a writ of prohibition, directed to the district court for the eighth judicial district and others, to prevent them from taking any further action with respect to an order to show cause issued by said court in the above action under date of September 17, 1948.
In the above action, which was heard as a default matter, plaintiff on June 22, 1946, was granted an absolute divorce from defendant, his wife. The court, after having expressly found both plaintiff and defendant to be fit and proper persons to have the control of their minor child, John Earl Kienlen (who was then of the age of seven years), awarded the permanent care, custody, and control of said child to defendant, subject to the right of plaintiff to visit said child at all reasonable times and to take said child to live with him for one month each summer. Plaintiff was ordered to pay defendant $25 per month for the support of said child. Defendant, who resided with her parents at Sleepy Eye, Minnesota, died June 26, 1947. Plaintiff alleges that he did not wish to accentuate the grief of the maternal grandparents over the loss of their daughter by immediately removing the child from their home, and that he therefore left him with them until July 17, 1948, when he took the child to his home at Cottagewood, Lake Minnetonka, where he resides with his present wife. Ever since, the child has resided with his father, with the exception of three or four days in the early part of September 1948, when he was permitted to visit his maternal grandparents.
Upon the affidavit and notice of motion of the maternal grandparents, Earl Meyer and Martha Meyer, the district court on September 17, 1948, in the divorce action, issued an order directing plaintiff to show cause why the court's prior order and decree should not be modified so as to give the custody of the child to the maternal grandparents, and further to show cause why plaintiff should not be held in contempt for failure to pay the sum of $25 per month for the support of said child. The order to show cause also directed plaintiff to deliver said child forthwith to such grandparents or to the sheriff of Sibley county. Upon the relation of plaintiff, an alternative writ of prohibition was issued herein to restrain further proceedings with respect to such order to show cause. Should the writ be made absolute?
1-2. The prevailing rule is that upon the death of the parent who has held custody of a minor child under a divorce decree the right to custody automatically inures to the surviving parent, unless he is shown to be unfit.1 A provision of a divorce decree awarding custody of a child to one of the parents is nothing more than the expression of the court's belief that, under the circumstances then existing, the welfare of the child will best be subserved by placing said child with one of the parents rather than with the other. Bell v. Krauss, 169 Cal. 387, 146 P. 874. In determining which parent is to have custody of a minor child, a divorce decree goes no further than to adjudicate the parental rights of husband and wife as between themselves, and the custody of such child is conditioned to both lives. Stone v. Duffy, 219 Mass. 178, 106 N.E. 595; Leclerc v. Leclerc, 85 N.H. 121, 155 A. 249, 74 A.L.R. 1348. The natural rights of a father are not completely annulled by a divorce decree awarding custody of the child to the mother, but are merely suspended for the time being and are revived in full force by the mother's death. In re Hollinger, 90 Kan. 77, 132 P. 1181. In State ex rel. Merritt v. Eldred, 225 Minn. 72, 29 N.W.2d 479, involving habeas corpus proceedings brought by the father to obtain possession of his minor child after the death of the mother, to whom custody had been given under a divorce decree, this court recognized that a surviving parent has the first and paramount right to the care and custody of his minor child and that he shall not be divested of that custody unless it appears that the best interests of the child so demand. See, State ex rel. Platzer v. Beardsley, 149 Minn. 435, 183 N.W. 956; State ex rel. Fossen v. Hitman, 164 Minn. 373, 205 N.W. 267.
In the instant case, the surviving parent, the father, in the divorce proceeding was found to be a fit and proper person to have custody of his minor son, although it was thought best, under all the circumstances then existing, that such custody should be given to the mother, who has since died. It may be presumed that the order to show cause herein was issued for the purpose of determining whether plaintiff, in the comparatively short time since the divorce was granted, has lost his qualifications as a fit and proper person to have the custody of his minor child, and to determine whether the best interests of the child now demand that plaintiff's first and paramount right to that custody be divested. The proceeding is directed toward a possible revision of the trial court's original custody order, and the maternal grandparents appear as the moving parties. Under these circumstances, does the trial court have jurisdiction to entertain a motion for revision of its custody order and the maintenance provisions contained in the decree of divorce?
3. The divorce jurisdiction of the district court is purely statutory and does not extend beyond the powers actually delegated to the court by statute. Warner v. Warner, 219 Minn. 59, 67, 17 N.W.2d 58, 62; Ostrander v. Ostrander, 190 Minn. 547, 549, 252 N.W. 449, 450; Sivertsen v. Sivertsen, 198 Minn. 207, 269 N.W. 413; see, State v. Armington, 25 Minn. 29, 37.
4. We are here concerned with M.S.A. § 518.18, which provides:
"The court may afterward, from time to time, on the petition of either parent, revise and alter such order concerning the care, custody, and maintenance of the children, or any of them, and make such new order concerning them, as the circumstances of the parents and the benefit of the children shall require." (Italics supplied.)
The above section is explicit and clearly expressive of only one meaning, namely, that the court in a divorce action may revise an order concerning the care, custody, and maintenance of the children only "on the petition of either parent." Clearly, no power, by implication or otherwise, is conferred upon the court to entertain a petition or motion by any party other than a parent. Here, the moving parties are the grandparents, and the trial court is wholly without jurisdiction on their motion to order a revision of its prior order governing custody and maintenance.2 In similar cases, other jurisdictions have likewise limited the jurisdiction of the court...
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