Larkin v. Larkin

• Decision Date: 11 June 1963
• Docket Number: No. 9245,9245
• Parties: Harold F. LARKIN, Plaintiff-Respondent, v. Margaret S. LARKIN, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 784

382 P.2d 784

85 Idaho 610

Harold F. LARKIN, Plaintiff-Respondent, v. Margaret S. LARKIN, Defendant-Appellant.

No. 9245.

Supreme Court of Idaho.

June 11, 1963.

Albaugh, Bloem, Smith & Pike, Idaho Falls, for appellant.

A. A. Merrill, Idaho Falls, for respondent.

SMITH, Justice.

This is an appeal from a decree denying appellant's motion for modification of a divorce decree as regards child custody; defining appellant's rights of child visitation, and awarding appellant travel expense during periods of child visitation.

Appellant and respondent were married December 25, 1949. The custody of four children, issue of the marriage, whose present ages range from approximately seven to eleven years, is involved in this proceeding. Respondent father, by the decree of divorce entered October 6, 1960, by the district court in and for Bonneville County, was awarded the custody of the children and appellant was granted rights of visitation at reasonable times and places.

Appellant and respondent for several years after their marriage lived in Schenectady, New York, where respondent had employment as an engineer with General Electric Company. During late 1959 or early 1960 the parties experienced domestic trouble, with divorce in contemplation. Appellant thereupon moved to New York City. The children remained with respondent, attending school in Schenectady.

During June, 1960, respondent was transferred by his employer to an engineering position at the National Reactor Testing Site near Idaho Falls, Idaho. He moved to Idaho Falls about July 6, 1960, bringing the children with him, where he and the children have since resided.

Sometime after respondent obtained the divorce, he and his present wife, Carol Larkin, were married. During July, 1962, as of the time of the hearing on the motion to modify, one child had been born as the issue of respondent's second marriage. Respondent was still employed by General Electric Company at the Reactor Site as an engineer at an annual salary of some $13,000. He is purchasing a home in a good residential area in Idaho Falls. He and his second wife, and the five children, live together as one family in good environment. All the children are well cared for and healthy.

After the divorce appellant obtained professional employment in singing and musical work, obtaining a contract as a recording artist with Columbia Record Company, and additionally the performed musical research work for several companies. She estimates her earnings in 1962 will approximate $7,000. She goes by the name of Margaret Welles. She testified that she lives in a good residential area in Saltaire, near New York City.

Following the hearing on the motion to modify the decree the trial court found that it is to the best welfare of the children that they remain with respondent, their father; that they should be kept together and their custody not disturbed; that they are healthy, are being educated, and are properly cared for and trained; also that respondent's situation has materially improved as regards the rearing of the children.

The trial court thereupon entered its judgment and decree denying appellant's motion for modification of the divorce decree, thus leaving undisturbed the original provision of the decree that respondent father have the custody of the children; and decreeing in effect that appellant have the custody of the children two weeks each year in Idaho Falls during school vacation; that respondent pay appellant $250 each year for her travel expense in coming to Idaho to visit the children, and that appellant have attorney's fees.

Appellant perfected an appeal from such judgment and decree.

Appellant assigns error of the trial court in finding that it is to the best interests of the children that they remain with respondent, and in failing to order that appellant have their custody. Appellant contends that there has been such a substantial, material and permanent change in circumstances and conditions, that such a change of custody would be for the best interests of the children.

In a divorce action the awarding of custody of a child rests in the sound discretion of the trial court in the first instance, as well as upon modification of an existent decree, and a decree awarding custody will be upheld in the absence of an abuse of discretion. I.C. § 32-705; Donaldson v. Donaldson, 31 Idaho 180, 170 P. 94; Hay v. Hay, 40 Idaho 159, 232 P. 895; Roosma v. Moots, 62 Idaho 450, 112 P.2d 1000; Fish v. Fish, 67 Idaho 78, 170 P.2d 802; Rogich v. Rogich, 78 Idaho 156, 299 P.2d 91.

In a divorce action an abuse of discretion occurs when the evidence is insufficient to support a finding that the interests and welfare of the child will be best served by changing the custody of the child. I.C. § 32-705; Maudlin v. Maudlin, 68 Idaho 64, 188 P.2d 323; Hendricks v. Hendricks, 69 Idaho 341, 206 P.2d 523, 9 A.L.R.2d 617; Brashear v. Brashear, 71 Idaho 158, 228 P.2d 243; Rogich v. Rogich, supra; Merrill v. Merrill, 83 Idaho 306, 362 P.2d 887; Angleton v. Angleton, 84 Idaho 184, 370 P.2d 788.

In determining which of the parties to a divorce action should have the custody of a minor child, the paramount consideration by which the court must be guided is the welfare and best interests of the child. Rogich v. Rogich, 78 Idaho 156, 299 P.2d 91, and authorities therein cited; Soderburg v. Soderburg, 78 Idaho 177, 299 P.2d 479; Stevens v. Davis, 78 Idaho 331, 303 P.2d 240; Emerson v. Quinn, 79 Idaho 358, 317 P.2d 344; Merrill v. Merrill, 83 Idaho 306, 362 P.2d 887; Angleton v. Angleton, 84 Idaho 184, 370 P.2d 788. The personal desires of the parent, and even the wishes of a minor child, must yield to the determination of what is best for the child's ultimate good. Olson v. Olson, 47 Idaho 374, 276 P. 34; Maudlin v. Maudlin, 68 Idaho 64, 188 P.2d 323; Rogich v. Rogich, supra.

If a minor child's divorced father is better fitted than the mother to care for and educate the child, an award of custody to the father will be upheld. Rogich v. Rogich, 78 Idaho 156, 299 P.2d 91; Brown v. Brown, 82 Idaho 308, 353 P.2d 393; Angleton v. Angleton, 84 Idaho 184, 370 P.2d 788.

The party seeking modification of a divorce decree has the burden of proof as regards change of conditions and circumstances of the parties. Simpson v. Simpson, 51 Idaho 99, 4 P.2d 345; McRoberts v. McRoberts, 80 Idaho 511, 335 P.2d 342.

Appellant's contention, that the court erred in failing to decree a change in custody of the minor children from respondent father to appellant mother, requires a review of the evidence in order to determine whether appellant proved such changed conditions and circumstances that the best interests and welfare of the minor children required the trial court to exercise its discretionary powers, thereby to modify the original decree.

The record discloses that respondent father is taking good care of his family; he is providing them with an adequate home in a good residential area and in excellent environment. The children are alert, healthy, loved and well trained. Respondent is providing for their education. The present Mrs. Larkin is a devoted mother and homemaker not only to her own child but to the minor children involved in this proceeding.

The record shows that respondent earns an excellent salary and is stable in his employment. On the other hand, appellant has never remarried, and her position is not well established. She lives near New York City, far removed from the jurisdiction of the Idaho...