Leach v. Leach, 40051

• Citation: 179 Kan. 557,296 P.2d 1078
• Decision Date: 05 May 1956
• Docket Number: No. 40051,40051
• Parties: Beverly LEACH, Appellant, v. James C. LEACH, Appellee.
• Court: United States State Supreme Court of Kansas

Page 1078

296 P.2d 1078

179 Kan. 557

Beverly LEACH, Appellant, v. James C. LEACH, Appellee.

No. 40051.

Supreme Court of Kansas.

May 5, 1956.

Syllabus by the Court.

In a proceedings to set aside an instrument, executed by plaintiff mother, referred to as a 'Relinquishment,' in which she states it is to the best interests of the parties' small son that he be raised by the father, and to change custody of the minor child from the father to herself, the record is examined, considered and held: The district court's order denying plaintiff' motion was within its sound judicial discretion and no error is discernible therein.

Pat Warnick, Wichita, Alan B. Phares, William C. Norton and H. E. Pat Healy, Wichita, on the briefs, for appellant.

Lee R. Meador, Wichita, Otto J. Koerner, and John N. Stice, Wichita, on the brief, for appellee.

FATZER, Justice.

This is an appeal from an order denying plaintiff's motion to set aside an instrument, executed by plaintiff (hereinafter referred to as Beverly), referred to as a 'Relinquishment' and to change the custody of the minor child of the parties.

The facts, so far as it is necessary to state here, are as follows: On September 3, 1952, defendant (hereinafter referred to as James) was granted a divorce from Beverly and awarded the custody of their small son, Lance Kerwin, for a period of six months; thereafter Beverly was given an opportunity to show her ability to take care of him. Neither party was found to be unfit to have his custody and control. The divorce decree granted the maternal grandparents the right of visitation and permitted them to have Lance in their home at stated intervals.

On August 15, 1952, two weeks before Beverly and James were divorced in Sedgwick County, Beverly married Donald Hart in Yuma, Arizona. Hart was a member of the Naval Forces. Early in 1953, Hart was transferred o Pearl Harbor for duty, and Beverly went with him. Shortly after they arrived in Honolulu and on March 18, 1953, they were remarried since they 'declared' their marriage in Yuma, Arizona 'illegal.' They have made their home in Honolulu since that time.

On May 24, 1953, a son Donald was born; they are also the parents of a small daughter. Five months after the divorce was granted, Beverly returned to Wichita to visit her parents. While there, and on January 29, 1953, she agreed with James that he was to continue to have the custody of Lance until June, 1957, with the right of visitation by the maternal grandparents as provided in the divorce decree. The record does not disclose whether this agreement was submitted to or approved by the district court. Between March 16, 1953, and October 7, 1953, various motions were filed in the divorce action by the maternal grandparents for the citation of James, accusing him of contempt; seeking to change the order of custody, and to modify the order of custody. These were heard by the district court. Since they are not involved in this appeal no further mention will be made of them except to say Beverly was not present when they were heard, and the custody of Lance was not changed.

During October, 1954, Beverly again returned to Wichita to visit her parents and to see her son. She remained there until January 8, 1954, when she returned to Honolulu. During this visit she saw Lance and had him with her approximately one-half the time although he did not stay with her and her two children overnight. She made no objection to this arrangement. Beverly and James discussed the custody of Lance on several occasions. The result of these conversations was that on the evening before Beverly left Wichita to return to Honolulu, she took Lance to the home of James' parents in Wichita and while there signed and acknowledged an instrument entitled 'Relinquishment.' This instrument recites, in effect: that Beverly is of the opinion the best interest of Lance would be served if he is raised by James; that she 'relinquish all her rights to said child,' and agrees and consents that James be granted full custody and control of Lance; that she enters her appearance and waives notice of any motion filed by James to change custody of Lance in conformity with the Relinquishment, and consents that the court enter an order giving James full custody, free from any right of Beverly or her parents.

On January 14, 1955, the district court, upon motion of James, granted him full custody of Lance, free from any right of Beverly or her parents. Previous orders of the court were modified accordingly. On February 12, 1955, Beverly filed a motion to place the custody of Lance with her, and to set aside the Relinquishment. This motion was fully heard by the district court on May 9, and 16, 1955, and denied. Beverly has appealed.

Beverly contends the district court erred in overruling her motion to set aside the Relinquishment and of refusing to change the custody of Lance from James to herself.

We shall first consider the legal effect of the so-called 'Relinquishment.' As we view this instrument it can only be considered as evidence of Beverly's inclination of what the believed to be the best interest and welfare of her son. That it is not a contract between the parties, is clear. At most, it is a statement by Beverly to the district court and to all parties concerned that she is of the opinion Lance's happiness and welfare will best be served if he lives with his father; she agrees that James be granted full custody of him, and consents that the district court may make an order placing her wishes in effect. That she had a right to advise the district court of her desire for Lance's welfare and best interest cannot be questioned, but she cannot, in this action, 'relinquish all her rights to said child,' as stated in the instrument. In the first place, children are not subject to gift as is property. Chapsky v. Wood, 26 Kan. 650; In re Kailer, 123 Kan. 229, 255 P. 41; Tucker v. Finnigan, 139 Kan. 496, 32 P.2d 211; In re Jackson, 164 Kan. 391, 190 P.2d 426. Secondly, nothing short of a finding of unfitness, G.S.1955 Supp. 60-1510, a valid adoption decree, G.S.1949, Ch. 59, Art. 21, or a juvenile court proceeding, G.S.1949, Ch. 38, Art. 4, will deprive a parent, by his own act, of his right or permit him to escape his responsibility to his minor children. Thirdly, in a divorce action the district court, by statute G.S.1955 Supp. 60-1510, has full jurisdiction of the minor children of a marriage and is directed to make provision for their custody, support and education. This is a continuing duty. It is the court which grants or denies custody, not the parents. Neither may escape their parental duty by relinquishing to the other...