Lewis v. Lewis, 47650

• Decision Date: 14 June 1975
• Docket Number: No. 47650,47650
• Citation: 537 P.2d 204,217 Kan. 366
• Parties: Delores Marie LEWIS, Appellant, v. William Hudson LEWIS, Appellee.
• Court: Kansas Supreme Court

Page 204

537 P.2d 204

217 Kan. 366

Delores Marie LEWIS, Appellant, v. William Hudson LEWIS, Appellee.

No. 47650.

Supreme Court of Kansas.

June 14, 1975.

Syllabus by the Court

1. In determining the right to custody of children between parents the primary consideration is the best interests and welfare of the children and all other matters are subordinate thereto, and the judgment of the trial court on this issue should not be disturbed in the absence of an affirmative showing of abuse of discretion.

2. Applying the foregoing to the facts disclosed in this record it is held the trial court did not err in denying plaintiff's motion for modification of custody of two minor children.

Thomas C. Boone, Hays, argued the cause and was on the brief for appellant.

Robert J. Lewis, Jr., of Lewis, Lewis & Beims, Atwood, argued the cause and was on the brief for appellee.

OWSLEY, Justice.

The is an appeal from an order of the district court denying a motion by the plaintiff mother to modify the original divorce decree awarding custody of the parties' minor children to the defendant father during the school year. Plaintiff contends there has been such a change in conditions that the welfare of the children requires a change of custody, and that the trial court abused its discretion in ruling plaintiff failed to sustain the burden of proof.

Delores Marie Lewis (plaintiff-appellant) and William Hudson Lewis (defendant-appellee) were married on August 13, 1961. Both parties were well educated and at one time or another they had been employed as school teachers. Two children were born of their marriage, William Bradley in 1965, and Jacquelyn Sue in 1968.

On December 29, 1971, plaintiff filed a petition for divorce on the ground of incompatibility, and in conjunction therewith sought an equitable division of property support, alimony, attorney fees, and exclusive custody of the two minor children. Defendant answered by denying the various allegations of plaintiff and by filing a cross-petition for divorce on the grounds of adultery, extreme cruelty, and gross neglect of duty. Defendant further alleged plaintiff was not a fit person to have custody of the children and requested he be awarded permanent custody of both children.

Prior to a hearing on the merits, defendant amended his cross-petition to include the ground of incompatibility. Plaintiff withdrew her petition and the trial court granted defendant a divorce on the ground of incompatibility. After having been fully advised in chambers as to the type of evidence both parties would present concerning their relative fitness as parents, as well as the fact plaintiff would be teaching school beginning in August, 1972, whereas, defendant would be giving up his teaching carerr to work on his farm near Atwood, Kansas, and having in mind at all times the welfare of the children, the court ordered custody of the children to be divided among the parents. The defendant husband was to have custody during the school year and the plaintiff wife was to have custody during the summer vacation, both periods of custody being subject to liberal visitation rights by the other party. A short time later the original order was more precisely defined as to the weekend visitation rights as a result of a stipulation and agreement entered into by the parties and approved by the court.

Following the divorce, plaintiff began teaching school in Edson, Kansas, and defendant quit his teaching job to work on the family farm.

In February, 1974, almost two years later, plaintiff filed a motion to modify the original custody order, alleging changed circumstances in the following respects:

'(i) That the plaintiff is now married, residing on a farm home near Colby, Kansas and that the environment at said home is conducive to the health and welfare of said minor children.

'(ii) That the plaintiff is no longer teaching school and her sole and only duties are that of a housewife and further, that she desires, as their natural mother, to have said minor children in her home in order to guide and direct them through their tender years.

'(iii) That the present custody arrangement is not conducive to the health, mental well-being and welfare of said minor children for the reason that the defendant herein is fully occupied with his present occupation and said children need the security that can be provided by their natural mother.

'(iv) That the plaintiff has reconcilded her former life style which plaintiff alleges was brought about by the gross incompatibility with the defendant herein.

'(v) That plaintiff has at all times material herein been ready and willing to assume full time the duties of a mother and desires that this Court, which has continuing jurisdiction over said minors, to return said children to her custody, with reasonable rights of visitation to their natural father, the defendant herein.

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'(vii) Plaintiff states that there has been no finding by this Court that the plaintiff herein is unfit to have said custody.'

After the hearing on the motion the trial court found plaintiff failed to sustain the burden of proof. The court concluded that plaintiff failed to show the welfare of the children required a change of custody, that the children were progressing and maturing normally under the original custody arrangement, and that the welfare and best interests of the children required the existing arrangement be maintained.

It is from the denial of this motion that plaintiff appeals, contending she should have been awarded custody of the children since she was the natural mother, and there was no finding at any time by the trial court that she was unfit to have custody. The issue here is whether the trial court abused its discretion by refusing to modify the custody order based on the alleged changed circumstances.

We are not concerned with the question of the propriety of the trial court's action in granting the original custody order. A decree awarding custody of a child is res judicata with respect to the facts and circumstances existing at the time of the decree. (Bierce v. Hanson, 171 Kan. 422, 233 P.2d 520.) This is an action brought to modify a custody order which had been in effect for nearly two years. The trial court is vested with continuing jurisdiction to modify a custody order when justified by a change in circumstances. (Moran v. Moran, 196 Kan. 380, 411 P.2d 677; Travis v. Travis, 163 Kan. 54, 180 P.2d 310.) Before a custody order will be modified the movant has the burden of showing the child can be better cared for if the requested change is granted. (Burns v. Burns, 177 Kan. 116, 276 P.2d 308.) This question is subject to the sound judicial discretion of the trial court after consideration of all the facts and circumstances shown by the evidence, and on appellate review its decision will not be distured by this court unless there is a clear showing of an abuse of discretion. (Kimbell v. Kimbell,190 Kan. 488, 376 P.2d 881; Hardenburger v. Hardenburger, 216 Kan. 322, 532 P.2d 1106.)

Here, we have an action brought by the natural mother seeking a change in custody, relieving the father of the right to the children during the school year. In a long line of cases we have held where the issue of custody of minor children lies between the parents, the paramount question for determination is what best serves the interests and welfare of the children, and all other issues are subordinate thereto. (Dalton v. Dalton, 214 Kan. 805, 522 P.2d 378; Patton v. Patton, 215 Kan. 377, 524 P.2d 709; Moran v. Moran, supra.)

Plaintiff stresses the fact she is the natural mother of the children and has never been declared unfit. On the other hand, defendant contends a proper interpretation of our prior decisions is that a trial court is vested with discretion to award custody of children to the father even though their mother may not be found unfit to have custody. This court has always recognized the value of maternal love and care where children are of tender age, and, absent a finding of unfitness, a mother is ordinarily entitled to the custody of a child of tender years. (Bierce v. Hanson, supra.) There is no fixed rule, however, requiring the custody of a minor child be awarded to its mother rather than to its father. (Moudy v. Moudy, 211 Kan. 213, 505 P.2d 764.) As stated in Moudy, the real issue is which parent will do a better job of raising the children and provide a better home environment. Where all other things are equal, children of tender age will normally be placed with their mother. (Erikson v. Erikson, 211 Kan. 155, 505 P.2d 688.)

In Bierce, the trial court denied a motion by the mother of a young child to change the custody from the father to the mother. The mother appealed, making much the same argument as plaintiff h...