Krieger v. Krieger

• Decision Date: 30 July 1938
• Docket Number: 6564
• Citation: 59 Idaho 301,81 P.2d 1081
• Parties: HAZEL I. KRIEGER, Appellant, v. BENNIE P. KRIEGER, Respondent
• Court: Idaho Supreme Court

81 P.2d 1081

59 Idaho 301

HAZEL I. KRIEGER, Appellant, v. BENNIE P. KRIEGER, Respondent

No. 6564

Supreme Court of Idaho

July 30, 1938

DIVORCE-MODIFICATION OF DECREE-CUSTODY OF CHILDREN-FITNESS OF PARENT-EVIDENCE.

1. In proceeding to modify divorce decree as to eight year old daughter's custody, examination of child as to which of its parents child would prefer to live with, if such examination is thought to be proper, should take place out of presence and hearing of the parents so as to save the child the embarrassment and possible fear of expressing a preference between the father and mother.

2. In awarding custody of minor child of divorced parents to either parent, child's welfare as a normal human being and future citizen must guide the court.

3. In proceeding to modify divorce decree as to eight year old daughter's custody, evidence held insufficient to support conclusion that mother was not a fit and proper person to have care and custody of child and that father was entitled to retain the absolute care, custody and control of the child.

4. In awarding custody of minor child of divorced parents to either parent, all other considerations being equal, court will consider that a child of tender age or a girl of even more mature years can and will be reared, trained and cared for best by its mother.

5. In proceeding to modify divorce decree as to custody of eight year old daughter, mother's conduct prior to the entry of decree of divorce and fact that mother remarried within three weeks after granting of divorce would not disqualify mother for the care and training of her child.

6. In proceeding to modify divorce decree as to custody of eight year old daughter, award which would require child to change back and forth from one community to another and one school to another during the school year should be avoided if, and in so far as, possible.

APPEAL from the District Court of the Second Judicial District, for Latah County. Hon. Gillies D. Hodge, Judge.

From an order denying motion for modification of decree awarding custody of child, plaintiff appeals. Reversed and cause remanded for further proceedings.

Costs awarded to appellant.

J. H Felton, for Appellant.

The welfare of the child is the controlling consideration, and it is well settled that the courts will not deprive the mother of the custody of her child unless it is shown clearly that she is so unfit a person as to endanger the child's welfare. (Kirkpatrick v. Kirkpatrick, 52 Idaho 27 10 P.2d 1057.)

An agreement between the husband and wife does not prevent the court from making an order for the custody of a minor child. (Hay v. Hay, 40 Idaho 159, 232 P. 895.)

In awarding the custody of a child to either parent, the welfare of the child is the only consideration. (Piatt v Piatt, 32 Idaho 407, 184 P. 470.)

Murray Estes, for Respondent.

The question as to the disposition of children is in the first instance in the discretion of the trial court, and unless such discretion is abused, the judgment will not be disturbed. (Olson v. Olson, 47 Idaho 374, 276 P 34; Donaldson v. Donaldson, 31 Idaho 180, 170 P. 94; Ruthruff v. Ruthruff, 52 Idaho 330, 14 P.2d 958.)

An appellate court should not disturb the order of the trial court unless it is made reasonably plain by the evidence that the welfare of the child requires it. (Ruthruff v. Ruthruff, supra.)

AILSHIE, J. Holden, C. J., and Givens, J., concur. MORGAN, J., BUDGE, J., Dissenting.

OPINION

AILSHIE, J.

Appellant and respondent intermarried at Weiser in 1928 and for three years thereafter lived on a farm near Midvale. They later moved to Troy where respondent was engaged in driving a logging truck. In the fall of 1936, appellant, over the protest of respondent, accepted employment cooking in a logging camp for one, John Hager, at Helmer. The minor child of the parties was left in the father's care in the meantime. Early in May appellant, being ill, was taken to the hospital. June 2, 1937, she filed action for divorce on the ground of cruelty; decree was granted July 17th, awarding appellant a decree of divorce from respondent and awarding to respondent the custody of their minor child, Claire Arlene Krieger. Thereafter, appellant, in the company of Hager, left for Camas, Washington, where she resided until August 10, 1937. August 6th she married Hager and they later moved to a farm near Nampa owned by appellant's parents. They were still living there December 13, 1937, when this motion was made, at which time the child was eight years old. Appellant did not see her daughter from July 18th until a short time prior to the trial.

This motion was made for a modification of the decree, awarding the custody of the child to respondent. Trial was had December 23d and January 7th following the court entered its order amending its former decree by adding the following words: "Provided, however, that the plaintiff, Hazel I. Krieger, may visit said minor child at the home of said defendant at any reasonable time or hour." From this order the present appeal is prosecuted.

Appellant's testimony discloses that there was an agreement between husband and wife that the child would be taken to his folks in Boise, to live there and go to school. Appellant was ill at the time and unable to take care of the child. Respondent was not in favor of the divorce but insisted on taking the child. After returning to Idaho, in the fall of 1937, appellant visited at the Knapik farm near Troy, where respondent and the little girl were living in an unfinished upstairs apartment, with unpapered walls, no rugs on the floor and no curtains at windows. Appellant imagined that it was a place that "would get afire." In comparison she described her home near Nampa, as a large two-story house with eight rooms, plastered and finished with calcimine, electric lights; having a large lawn around it and trees, "a nice country home." She testified that she had always sewed for her little girl; that it was a great pleasure and that the child had never worn a ready-made garment. She sent clothing to the child but they were returned; that the father wouldn't allow her to send a gift to the child at Christmas; that he said he would like to burn all she had made for the child so that "he would never have to see her wear it." Before bringing action for divorce, appellant, at respondent's instance and request, wrote a letter to his parents in which she informed them that Krieger and she had separated; that it wasn't his fault and that he had always been good to her in every way; that he had the baby and she couldn't be mean enough to take her from him. Respondent admitted that he had asked appellant to write such a letter, so that "they would know the truth about it."

As to appellant's fitness and ability to care for her little girl: A Mrs. Oslund, principal of the grade school at Troy, testified that she took care of the Krieger child from November to May, while appellant was working. The father paid for one month and the mother gave her a check and cash; she did "not know whose money it was." At a prior time appellant had taken care of her own child and Mrs. Oslund's boy and Mrs. Oslund "was more than pleased with her work" and what she did for her child; that appellant came up to sew and fix the clothes; that she had "seen or heard nothing to the contrary" as to appellant's fitness to have the child's custody; that the child "didn't look neglected by any means, just a nice appearing girl and . . . . well dressed."

Mrs. Banks, in whose upstairs apartments the Kriegers lived when they first moved to Troy, took care of the Krieger child for about a month while the mother was working. The latter made arrangements with Mrs. Banks to get the child over the week-ends, but she did not come to see the child during that time. Ray Rauch, respondent's employer at Troy, testified that his family had Thanksgiving dinner at the Kriegers and that "they [the latter] had both worked very hard to get it fixed."

As to the ability and fitness of respondent to care for his little girl, the following testimony is found: Respondent testified that he took the child down to his folks in Boise in May and left her there until the latter part of June; brought her up with him the 14th of July and they lived at Elk River with Mr. and Mrs. Altmaier, whom respondent also brought from Boise. They later moved to Cornwall. Mrs. Altmaier kept house for Mr. Krieger and her own family. As to the type of food supplied, she testified that she had anything she wanted to cook. "All I have to do is tell them what I need and they get me the groceries. . . . Just common ordinary food, just what children need." She also testified to the "real good grades" respondent's child received in school at Cornwall.

Mrs. Banks testified that "Mr. Krieger was a very good father." Respondent's employer, Rauch, said: "Ben Krieger was a very good worker. I am quite sure that Ben would take care of her [the child] to the best of his ability." Frank Rowan, resident of Troy for 31 years, testified as to Krieger's reputation as to moral character; that it was "good, splendid"; that he was a good worker, and would take care of the little girl "the best he possibly could." Knapik, another employer of Krieger, also testified that respondent was a good worker and "couldn't see where she [Krieger child] could have any better care."

Claire Krieger, whose custody is sought by appellant, was placed on the witness stand and testified that she lived with her daddy; that he came home every night; that Mrs. Altmaier took care of her and she liked her, liked her teacher and got along fine in school. She said she liked her daddy and mama both but when asked the following question "Do you care...