Kirkwood v. Kirkwood

• Decision Date: 01 August 1961
• Docket Number: No. 8888,8888
• Citation: 83 Idaho 444,363 P.2d 1016,95 A.L.R.2d 112
• Parties: , 95 A.L.R.2d 112 May T. KIRKWOOD, Plaintiff-Appellant, v. Edward R. KIRKWOOD, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 1016

363 P.2d 1016

83 Idaho 444, 95 A.L.R.2d 112

May T. KIRKWOOD, Plaintiff-Appellant, v. Edward R. KIRKWOOD, Defendant-Respondent.

No. 8888.

Supreme Court of Idaho.

Aug. 1, 1961.

Peter G. Leriget, Moscow, for appellant.

Felton & Bielenberg, Moscow, for respondent.

TAYLOR, Chief Justice.

The parties were divorced by decree dated September 6, 1957. Plaintiff (appellant) was awarded custody of two minor children, John and Aleta Kirkwood, aged 12 and 9 at the time of divorce. Defendant (respondent) was given the right to visit the children 'at any and all reasonable times'; was required to pay to plaintiff $200 per month for the support of the children, and to pay plaintiff's attorney's fee and costs.

In December, 1957, defendant procured an order directing plaintiff to show cause why the decree should not be modified by transferring the custody of the children to the defendant, because of plaintiff's violation of the provision giving defendant the right of visitation. After hearing, the court, on September 19, 1958, made its order modifying the decree and requiring defendant to pay plaintiff's attorney's fee. Custody was left with plaintiff. The visitation right of defendant was modified as follows 'It Is Further Ordered, Adjudged and Decreed by the Court that the defendant, Edward R. Kirkwood, shall be and he is entitled to visit the children of the parties on Saturday afternoons or evenings for a period of not more than 2 1/2 hours away from the home of the plaintiff unless a longer period of time is mutually agreeable to the parties to this action. Such visits shall not conflict with any other regular or special plans or programs of the child or children themselves un-influenced by the parties. The children shall be returned to plaintiff's home not later than 9:30 P.M. These visits may be scheduled for holidays but whether on Saturdays or holidays only one visit per calendar week may occur unless because of a conflict in the schedule of the child or children or any other reason he or they cannot visit on a Saturday, in which event a visit may be had on the following Wednesday as well as the next Saturday.'

November 21, 1958, defendant again procured an order from the court directing plaintiff to show cause, why the decree as modified should not be again modified by transferring the custody of the children to the defendant and eliminating the support allowance. The petition charged plaintiff with contemptuous disobedience of the decree, and of the order of September 19, 1958.

Plaintiff, appearing by her third counsel, filed answer, and sought $500 temporary attorney's fee and $100 suit money. In resistance to the application for attorney's fee and suit money, defendant made a showing that he was earning approximately $450 per month and was paying $200 a month to plaintiff for the support of the children; that he had paid all of the attorney's fees and costs as ordered by the court; that he was without funds to pay plaintiff's counsel fees; and that by her answer plaintiff admitted that she had violated the decree and order by refusing to permit defendant to visit the children. After hearing, by order dated February 20, 1959, the application for counsel fees and suit money was denied. The order recites:

'By stipulation of counsel in January, 1959, the issue of such temporary allowances was submitted to the Court upon the affidavits and verified answer to the show cause order previously filed. The matter having been thus submitted and it appearing from plaintiff's verified answer to the Show Cause Order that plaintiff has made no effort to conform with either the letter or the spirit of the Court's modified Decree provision dated September 19, 1958, but, on the contrary, has persistently evaded and failed to cooperate in making reasonable compliance with the Court's order for visitation by the minors with their father and has obstructed the Court thereby.'

The judge of the district in which the cause was pending thereafter disqualified himself and transferred the cause to the late Honorable Albert J. Graf, judge of the first district, for hearing on the pending order to show cause. After hearing, Judge Graf rendered an 'Opinion' December 9, 1959. Thereafter Judge Graf died December 21, 1959, and his successor assumed jurisdiction.

In his opinion Judge Graf found as follows:

'As to question number one, this Court finds from the evidence introduced in this matter that the plaintiff, May T. Kirkwood, is in contempt of this court's orders. By her own testimony she admits of three refusals for the defendant to have the children and her excuses offered for such refusals are simply this, that his demands to have the children did not conform with the court's order. She even refused to accept her attorney's advice in this matter. She refused to consider that his times and days off had been changed since the court decree had been entered. Even when he asked to have the children on Saturdays (a day provided for by the decree) she refused.

She admits upon cross examination that because of his remarriage and the fact she therefore considers him to be living in adultery is partially a reason for not allowing the children to visit in his home. This course or pattern of denying his right of visitation is a course which she has pursued since his remarriage and which has brought her at a prior time before this Court on a contempt proceedings.'

On one of the two Saturdays on which plaintiff admitted that defendant had requested a visit with the children, plaintiff's only explanation of her refusal was, 'I simply said 'no' and that was the end of the matter.' The trial judge interviewed the children privately in chambers and further found:

'If there is any alienation of affection, it has been done through the religious training given to these children by their mother. Their religious training has been based upon the books interpreting the Bible as written by Pastor Russell [Charles Taze Russell] before his death. The children do not go to any church or Sunday school.

'* * * they respect, honor and love their father but they do not want to live in his home because of his remarriage. Their religious belief makes this a sin, amounting to adultery. Hence they do not want to live with their father or even visit him in his home because they felt they would be guilty of a sin. They refused to accept my explanation that their father's remarriage was legal by our laws. Therefore this Court has before it a question of religious training that has alienated these children from their father.'

After hearing, a motion by plaintiff to vacate the 'Opinion' filed by Judge Graf was denied, and on February 15, 1960, the successor judge made an order in conformity with the opinion of Judge Graf, as follows:

'Now, Therefore, It Is Hereby Ordered, Adjudged and Decreed, that May T. Kirkwood, the plaintiff, is in contempt of this Court, but punishment for said contempt is being withheld. If the plaintiff persists in ignoring, defying or violating this Court's order, she will be brought back into Court and punished.

'It Is Further Ordered, Adjudged and Decreed that plaintiff, May T. Kirkwood, shall retain the care, custody and control of the minor children of the parties, to-wit: Aleta Kirkwood and John Kirkwood; however the defendant be, and he hereby is Ordered to have rights of visitation as follows:

'1. Any school day between the hours of 4:00 o'clock P.M. and 7:00 o'clock P.M.

'2. Other days between 9:00 o'clock A.M. to 9:00 o'clock P.M.

'3. At least one visitation period a week, during the time set forth in Paragraphs 1 and 2 above.

'4. Right to have children in his home during school holidays or weekends and to stay overnight if he desires that privilege, and one day's notice of this desire to the plaintiff will be sufficient.

'5. Defendant has the right to have the children stay in his home at least one month during summer vacation; this month to be the month of his choosing. During this visitation no support payments to be paid to the plaintiff for the support of said children.

'It Is Further Ordered, Adjudged and Decreed that the defendant make all support payments to the Clerk of the Court and the Clerk be, and she hereby is ordered to give said payments to the plaintiff without a further order of this Court upon receipt of said payments from the defendant. In the event that the plaintiff refuses to comply with this Court order in any manner or form, and in the event that the defendant, or his counsel, files a protest in...