Kogler v. Kogler
| Decision Date | 03 May 1947 |
| Docket Number | 36784. |
| Citation | 163 Kan. 62,179 P.2d 940 |
| Parties | KOGLER v. KOGLER. |
| Court | Kansas Supreme Court |
Rehearing Denied June 14, 1947.
Appeal from District Court, Dickinson County; James P. Coleman Judge.
Action by Mary Kogler against Earl Kogler for divorce wherein the plaintiff obtained a decree for divorce which awarded her the custody of two children and required the defendant to pay $40 per month for their support. From an order denying defendant's motion for a change of custody of children the defendant appeals.
Order affirmed.
Syllabus by the Court
After a divorce action, in which the wife was granted a divorce and given the custody of their two minor children, the husband later married a woman who had divorced her husband and had been given the custody of their two minor children, the defendant in the first case filed a motion to have the custody of the children changed to him, which motion the court heard and denied. Held: The ruling is of a character that rests in the sound judicial discretion of the court; (2) this court does not reverse the ruling of the trial court in such a case unless it is clearly shown that the trial court abused its discretion; (3) examining the evidence in the record before us we find nothing that would require or justify this court in saying the trial court had abused its discretion in denying the motion.
Howard W. Harper, of Junction City (Lee Hornbaker, of Junction City and Ora C. Snyder, of Manhattan, on the brief), for appellant.
Matt Guilfoyle and John H. Lehman, both of Abilene, for appellee.
The appeal here is from an order of the court overruling a motion to change the custody of children. The record discloses that plaintiff and defendant were married in June, 1933, and are the parents of two children, a son Bruce, now about 12 years of age, and a daughter, Helen Marie, about a year younger. On April 17, 1943, plaintiff was granted a divorce from defendant and the decree of the court gave her the custody of the two children and required defendant to pay $40 per mouth for their support. Defendant did not appear and defend the divorce case nor complain of the decree issued therein. He has continued to make the monthly payments provided for in the decree for the support of the children and at time has made additional payments.
Defendant entered the armed service May 12, 1943, and was honorably discharged October 12, 1945. On May 18, 1946, he married his present wife, Helen Kogler, who has two daughters, ages about seven and three, by a former marriage.
In June, 1946, plaintiff filed a motion for an order increasing the payments for child support. In August, 1946, defendant filed a motion asking the court to change the custody of the children from plaintiff to him. On September 7, 1946, both motions were heard and denied. A number of witnesses testified at the hearing. In his motion to change the custody of the children defendant, among other things, alleged 'Plaintiff is not a fit and proper person to be charged with and have the responsibility of their maintenance, care, comtrol and custody.'
In a written decision passing upon the motions the court recited the fact that the divorce had been granted to plaintiff and that she had been given the custody of the children, at which time no complaint was made of her fitness to have their custody, and said:
The case is submitted here upon the abstract and brief of appellant only. Counsel who appeared for appellee at the hearing advises that she has no funds to pay for the preparation of a counter-abstract and brief. However, the abstract prepared for appellant appears to be quite complete. We need make only a brief summary of the evidence offered. Plaintiff's mother died when she was less than a year old. She was reared in the home of her sister, Mrs. Herbert Felbush, and her husband. They own and operate a 400 acre farm about 10 miles from town. It appears that after plaintiff and defendant were divorced she and the children lived for a time in an apartment in town, but had to give it up because she could not pay the rent. Mr. and Mrs. Felbush then bought a home in town for plaintiff and her children where they have since resided. Plaintiff worked at such work as she could find to...
To continue reading
Request your trial
-
Maston v. Maston
...in view of all the facts and circumstances shown by the evidence. Prier v. Lancaster, 169 Kan. 368, 371, 219 P.2d 358; Kogler v. Kogler, 163 Kan. 62, 179 P.2d 940; Hayn v. Hayn, Appellant concedes the foregoing rules of law but contends that appellee's evidence for change of custody of the ......
-
Dodd v. Dodd, 38210
... ... [171 Kan. 48] See Prier v. Lancaster, 169 Kan. 368, 219 P.2d 358; Kogler" v ... Kogler, 163 Kan. 62, 179 P.2d 940; Travis v. Travis, 163 Kan. 54, 180 P.2d 310; Hayn v. Hayn, 162 Kan. 189, 175 P.2d 127 ... \xC2" ... ...
-
Thornbrugh v. Thornbrugh
...the record makes it clearly appear that discretion has been abused. See Prier v. Lancaster, 169 Kan. 368, 219 P.2d 358; Kogler v. Kogler, 163 Kan. 62, 179 P.2d 940; Travis v. Travis, 163 Kan. 54, 180 P.2d 310; Hayn v. Hayn, 162 Kan. 189, 175 P.2d 127.' 171 Kan. loc. cit. 47, 229 P.2d loc. c......
-
Thompson v. Breeding, 39776
...child and for that purpose former adjudications are evidentiary only and not controlling; and that under our decision in Kogler v. Kogler, 163 Kan. 62, 179 P.2d 940, it is a settled rule that whether the court changes the custody of a child from one parent to another, when they have been di......