Laughton v. Laughton

• Decision Date: 04 August 1953
• Docket Number: No. 2602,2602
• Citation: 71 Wyo. 506,259 P.2d 1093
• Parties: , 43 A.L.R.2d 351 LAUGHTON, v. LAUGHTON.
• Court: Wyoming Supreme Court

Page 1093

259 P.2d 1093

71 Wyo. 506, 43 A.L.R.2d 351

LAUGHTON, v. LAUGHTON.

No. 2602.

Supreme Court of Wyoming.

Aug. 4, 1953.

William D. Redle and Henry A. Burgess, Sheridan, for appellant.

Lonabaugh & Lonabaugh, E. E. Lonabaugh, Sheridan, for respondent.

HARNSBERGER, Justice.

On March 21, 1952, the plaintiff-appellant was granted a decree of absolute divorce from the defendant-respondent, the decree finding each of the parents to be fit and proper persons to have the care, custody and control of the minor child, and the custody of their five year old son was divided between them, the father having the child the nine months of September through the following May, and the mother the three months of June through August.

On August 30, 1952, just five months and nine days after the decree was made, the respondent asked that it be modified so as to award her the exclusive custody of the child, and to require the appellant to pay her $50 a month during the period she was to have the child, instead of the $25 per month provided in the original decree.

The grounds alleged in support of this petition are that the respondent had remarried that she had a home, that it was for the child's best interest for respondent to have the custody as the child was of tender years and had reached kindergarten age, the facilities for which were available at or near her residence. She also set forth that the father had not been able to provide a proper home for the child subsequent to the divorce; that the father, being a school teacher, was engaged during the day and the child was--during such times--moved from home to home and did not receive the care and love which the boy would receive from her; that $25 a month was insufficient for maintenance of child and that $50 per month would be proper.

The appellant's answer made general denial of these allegations and states that he and his parents rented a comfortable dwelling where they maintained a good home for the child and in which he is provided with training comparable to kindergarten training.

Upon hearing, the court modified the decree of March 21, 1952, by awarding the respondent the custody for the nine month period and the appellant the custody for the three month period, finding that each parent was a fit and proper person to have the care, custody and maintenance of the child; that the child should alternate between the parties at Christmas, and that the amount to be paid by appellant for the child's maintenance during the period he is with the mother, be increased to $30 per month.

The matter is brought here by the direct appeal of the father, the plaintiff below, who contends that the modification decree '* * * is erroneous as being contrary to the law and to the evidence and as being supported by insufficient law and evidence'.

The important questions to be decided are--first, which--if any--of the petitioner's allegations has substantial support in the evidence, such evidence being examined in accordance with the rule we have established when findings of fact are challenged, Willis v. Willis, 48 Wyo. 403, 49 P.2d 670; Brown v. Wyoming Butane Gas Co. Inc., 66 Wyo. 67, 205 P.2d 116; Durante v. Consumers Filling Station Co., Wyo., 257 P.2d 347; and, second, whether the allegations found to be proved, constitute in law sufficient grounds for modifying the original decree.

Section 3-5915, Wyoming Compiled Statutes, 1945, provides:

'The court, in granting a divorce, and also upon pronouncing a decree of nullity of a marriage, may make such disposition of, and provision for, the children as shall appear most expedient under all the circumstances, and most for the present comfort and future well-being of such children; and the court may from time to time afterward on the petition of either of the parents, revise and alter such decree concerning the care, custody and maintenance of such children, as the circumstances of the parents and the benefit of the children shall require.'

The general rule as summarized in the caption paragraph of 27 C.J.S., Divorce, § 317-b, p. 1188, states: 'To justify a substantial modification there must be a change of circumstances or the discovery of material facts unknown to the court at the time of the original decree. The welfare of the child is controlling, and in determining this a number of factors may be considered.'

This court has recognized, and invariably followed that general rule, and has repeatedly said that in determining the question of the custody of a child, its welfare is the paramount consideration. Linch v. Harden, 26 Wyo. 47, 176 P. 156; Stirrett v. Stirrett, 35 Wyo. 206, 222, 248 P. 1; Tytler v. Tytler, 15 Wyo. 319, 89 P. 1, 123 Am.St.Rep. 1067; Jones v. Bowman, 13 Wyo. 79, 77 P. 439, 67 L.R.A. 860; Madson v. Wyoming Humane Society, 25 Wyo. 338, 169 P. 336; Harris v. Muir, 24 Wyo. 213, 157 P. 26; Curran v. Curran, 51 Wo. 217, 65 P.2d 243; Kennison v. Chokie, 55 Wyo. 421, 100 P.2d 97; Hiatt v. LaFever, 69 Wyo. 373, 242 P.2d 214.

Where it is contended that due to changed conditions a previous decree should be modified in the interest of the child so as to better provide for its welfare, the burden is upon the party alleging it, to prove that such change has in fact occurred, and that it warrants a modification. Stirrett v. Stirrett, 35 Wyo. 206, 248 P. 1; Gavel v. Gavel, 123 Cal.App. 589, 11 P.2d 654; Belford v. Belford, 159 Fla.Rep. 547, 32 So.2d 312; 27 C.J.S., Divorce, § 317, p. 1195; Merges v. Merges, 94 Or. 246, 186 P. 36.

Proceeding to the examination of the record, we find no evidence whatever to support the charge that the father failed to provide a proper home for the child, or that the child had been moved from home to home.

There was testimony that the respondent would--if granted the custody she sought--take the child to kindergarten in a car, but this was all the evidence on that point.

The marriage of the twenty-nine year old respondent to a man sixty-eight years old--considerably more than twice her own age--is unquestionably established by the evidence, as well as the fact that she and her husband have a rented basement apartment, consisting of a kitchen, living room and bedroom, with available closet and bath facilities, and that respondent's new husband said he would provide a home for the child.

This summarizes all the material evidence offered by the petitioner to show the alleged change in condition. As meager as it is, the force of this evidence to prove that there was such a substantial change in conditions as would give the court authority to modify the existing decree, was weakened by the reasonable assumption that in making the original decree, the court undoubtedly took into account that the father would have to work to earn a living; that it would be necessary for him to arrange for the child's care during the period of his absence; that the child was of such age that kindergarten or similar activity is sometimes made available; that within approximately a year's time the lad would be of school age; that during the nine months' custody of the father, he would be without the constant care and the opportunity to have bestowed upon him the affection of his mother, just as he would be deprived of these same desirable attentions from his father during the three months of the mother's custody--and yet, with full knowledge of all these things and possibly also keeping in mind other matters brought to attention in the divorce trial, but not disclosed by the record before us, the court being then in the best position to judge as to which of the parties would be the child's best mentor and which parent would contribute the most to the child's best interest and welfare, made the award which is now sought to be changed.

To answer the respondent's contention that the availability of kindergarten facilities 'has been held sufficient as a change of circumstances, and for the welfare of the child', to justify a modification of a previous decree, it is enough to say that neither the cited text of 27 C.J.S., Divorce, § 317-b, p. 1191, nor any of the authorities noted thereunder, justify the statement.

The respondent calls attention to Linch v. Harden, 26 Wyo. 47, 176 P. 156, where this court affirmed a modification decree, and respondent says that in that case the only change in circumstances shown was that the wife had remarried and had established a proper home in which to raise the child. But counsel misapprehends our holding.

In the Linch case the appellant had secured a default divorce in Oregon; later, while the mother and child were living in Wyoming, he secured from the Oregon court an award for the custody of his four and one-half year old daughter, neither the divorced wife nor the child being present at the trial, and the mother appearing only by attorney. Thereupon appellant brought habeas corpus in Wyoming, contending the Oregon award of custody was binding and final until conditions had sufficiently changed to justify a different judgment or the same was modified by the Oregon court.

This court stated, 26 Wyo. 47, at page 52, 176 P. 156, 158:

'* * * It appears that, at the time the matter of the custody of the child was heard by the Oregon court, there was evidence to the effect that the mother was not at that time a fit person to have the care of the child for reasons not necessary to here state. Whatever objections there may have been to her having the custody of her child, and however well founded such objections may have been, the evidence before the court at the hearing of the present case is, in our opinion, sufficient to sustain the conclusion that those objections no longer exist, * * *.'

Thus, it was expressly found that a material change had occurred with respect to the mother's fitness.

There is a different situation here however. In this case there was an express finding by the court when the divorce was granted, that the mother was a fit and proper...