King v. King

• Court: North Dakota Supreme Court
• Writing for the Court: NUESSLE
• Citation: King v. King, 61 N.D. 422, 237 N.W. 854 (N.D. 1931)
• Decision Date: 10 September 1931
• Docket Number: No. 5948.,5948.
• Parties: KING v. KING.

61 N.D. 422

237 N.W. 854

KING

v.KING.

No. 5948.

Supreme Court of North Dakota.

Aug. 12, 1931.

Rehearing Denied Sept. 10, 1931.

Syllabus by the Court.

In determining the question of the right to the care and custody of minor children of divorced parents, the court's chief considerationis the welfare of the children. Held, for reasons stated in the opinion, that, in the instant case, the care and custody of the children should be given to the plaintiff, subject to the right of the defendant to see them at reasonable and convenient times and to have the children visit him and his parents during a portion of the summer vacation months.

Additional Syllabus by Editorial Staff.

Evidence tended to show that divorced husband was a tenant farmer or farm laborer, with a very small income. Evidence, though tending to show that such sum was inadequate to support and maintain children, established that it was such amount as husband could reasonably provide in view of his circumstances and situation.

Appeal from District Court, Ramsey County; G. Grimson, Judge.

Action by Elizabeth Ann King, now Smith, against Grover Douglas King. From a modified judgment of divorce providing for the care and custody, and maintenance of named children, plaintiff appeals.

Affirmed in part, and in part modified and cause remanded with directions.

Lemke & Weaver, of Fargo, for appellant.

William Anderson, of Devils Lake, for respondent.

NUESSLE, J.

In February, 1927, a judgment was entered in the above-entitled action divorcing the parties and making provision for the custody, care, and maintenance of the two children of the marriage, Phyllis aged eight, and Ethelyn aged four. Thereafter at intervals orders were made and entered modifying the provisions of the judgment with respect to the custody of the children and the allowance for their maintenance. See 59 N. D. 688, 231 N. W. 846. In December, 1930, a further modification of the judgment was made, and this appeal is from the judgment as thus modified. Under the terms of this judgment the custody of the children was continued in the plaintiff as long as she maintains them in the home of the maternal grandparents, but with the condition that if suitable arrangements can be made toward that end the paternal grandparents are to have the children during the three summer vacation months. Both parents have the right of visitation at reasonable and convenient times. The defendant is required to pay $25 per month for the support and maintenance of the children during such time as they are in the custody of their mother, the plaintiff.

The judgment from which the appeal is taken was entered after the hearing of a motion for modification made by the plaintiff. The record on which the trial court predicated his order for the modified judgment is voluminous. It is full of crimination and recrimination. Regard for the children impels us to refrain from any discussion of the record that is not absolutely necessary to an understanding of the case. Suffice it to say we are of the opinion that the findings of the trial court as set forth in his memorandum are amply sustained.

[1][2] The questions now here involve merely the custody of the children and the provision made for their support by the defendant. They are such that the trial court who saw and heard the parties and their witnesses could much better determine them than can this court from a cold record. They involve the exercise of judgment and discretion under such circumstances that we are reluctant to disagree with the conclusions at which the trial court arrived.

The defendant is a farmer. He has but little property and is dependent for maintenance on what he can make as a tenant farmer or earn as a farm laborer. The plaintiff has remarried. Her present home is in Minnesota. So far as the record shows, her present husband has no means except such as he earns as an automobile salesman on commission. The record is silent as to whether she and her husband are able to maintain a home in which the children can be kept. All that appears is that they have an apartment. This may mean much or little. The grandparents, both maternal and paternal, are North Dakota farmers. They are people of good standing and excellent reputation in the communities wherein they reside. They operate large farms. They have comfortable and commodious homes. They manifest great interest in and affection for the children. No exception can be taken to either home as a home for the children other than because of the ages of the grandparents.

As the trial court said, the principal concern of the court in this proceeding is the welfare of the children. The original decree making provision for their care and custody and their maintenance and support is subject to vacation or modification by the court at any time on sufficient showing made therefor. See sections 4404 and 4405, Comp. Laws 1913. The parents, of course, are prima facie entitled to the custody of their children. The father owes the duty to provide for their reasonable maintenance and support. The trial court fixed the amount that the defendant should pay in this behalf at $25 per month. Since he...