Masek v. Masek

• Decision Date: 25 April 1975
• Docket Number: No. 11390,11390
• Parties: Patricia Bell MASEK, Plaintiff and Appellant, v. Fred L. MASEK, Defendant and Respondent.
• Court: South Dakota Supreme Court

Page 334

228 N.W.2d 334

89 S.D. 62

Patricia Bell MASEK, Plaintiff and Appellant, v. Fred L. MASEK, Defendant and Respondent.

No. 11390.

Supreme Court of South Dakota.

April 25, 1975.

Rehearing Denied May 27, 1975.

Woods, Fuller, Shultz & Smith, and William G. Taylor, Jr., Sioux Falls, for plaintiff and appellant.

Davenport, Evans, Hurwitz & Smith, and Carleton R. Hoy, Sioux Falls, for defendant and respondent.

ANDERST, Circuit Judge.

The parties to this action were married on March 25, 1964, in Sioux Falls, South Dakota, and have resided there ever since. To this union two sons were born, Richard and Brian, ages six and four respectively, at the time of trial. This action was commenced by the service of a summons and complaint on the defendant. By her complaint, plaintiff sought an absolute divorce from the defendant, care, custody and control of the children, reasonable child support, and an equitable division of the property. Defendant answered the plaintiff's complaint, admitting residency, date of marriage, and the names and ages of the children; denying the remainder of her complaint. Defendant further counterclaimed for a divorce from the plaintiff, alleging as grounds grievous mental cruelty. Defendant also sought custody of the children. Plaintiff in her reply denied defendant had any cause of action for divorce whatsoever.

Trial was held to court. Habeck v. Habeck, 51 S.D. 455, 214 N.W. 846. Counsel for the plaintiff presented evidence by calling the plaintiff and several other witnesses, each of whom was cross-examined by counsel for the defendant. After plaintiff rested, counsel for the defendant called the defendant who testified on his own behalf. He called no other witnesses. The trial court found in favor of the defendant, awarding him an absolute divorce and custody of the children on his counterclaim, and dismissing the complaint of the plaintiff. From this judgment and decree of divorce the plaintiff has appealed.

Three issues have been raised by plaintiff's appeal. The first is, the defendant did not corroborate his testimony; second, he failed to prove a cause of action for divorce; and third, the trial court abused its discretion by awarding custody of the minor children of the parties to the defendant.

The question of corroborating evidence presents the only question of serious difficulty in the case. By South Dakota law then in effect, SDCL 25--4--36, 'No divorce can be granted upon * * * the uncorroborated statement, admission, or testimony of the parties * * * but the court must, in addition to any such statement, admission or testimony of the parties * * * require proof of the facts alleged * * *.' This court has never ruled upon or interpreted the foregoing statute and may never be called upon to do so again in the future as this statute was repealed by Chapters 173 and 174 of the 1974 Session Laws. The statute crystalized a preexisting rule of evidence in divorce cases. It was first established by the divorce courts in England, later enacted into statute by the state of California, from which state it was borrowed and reenacted by the Territory of Dakota. The rule and the statute are alike intended to operate as a barrier against granting collusive divorces. Our duty is to apply the rule according to its letter and spirit. The North Dakota courts have passed on its similar statute many times, the first being in the case of Clopton v. Clopton, 11 N.D. 212, 91 N.W. 46, wherein they said:

'Does this phrase imply that every element and ingredient of the matrimonial offense must have the support of evidence other than the admissions or testimony of the parties? We think otherwise. To give the rule of a statute a rigid and inflexible interpretation would greatly tend, in our judgment, to defeat the ends of justice in many cases.'

'* * * where the element of collusion is excluded, that the reason for the rule falls; and in such cases, while there must be corroborating evidence to satisfy the statute, such evidence need not extend to every feature of the matrimonial offense.' (from syllabus)

The North Dakota court further adopted the California rule laid down in Evans v. Evans, 1871, 41 Cal. 103, that:

'The statute does not define to what extent the corroboration must go. In the very nature of the case it would be impossible to lay down any general rule as to the degree of corroboration which will be requisite. Hence the statute only requires that there shall be some corroborating evidence'.

The sufficiency of the corroboration must be left to the discretion of the trial court and must be determined upon the facts of each case. 24 Am.Jur.2d, Divorce and Separation, § 382. This we feel to be the proper interpretation of this statute and the one we adopt. The present case was hotly contested, with no evidence of any collusion between the parties. The record reveals some corroborating evidence was presented, and this fulfilled the requirements of the statute.

The testimony in the case was conflicting. To repeat it here would serve no worthwhile purpose. That the grounds for divorce were weak is undisputed. However, from reviewing the record and the testimony, we find the trial court could find the defendant suffered extreme cruelty in that the plaintiff inflicted grievous mental suffering upon him. In cases tried to the court without a jury, findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity the trial court had to judge the credibility of the witnesses. SDCL 15--6--52(a), and Schulte v. Schultz, 86 S.D. 518, 199 N.W.2d 39.

The final issue is, did the court abuse its discretion in granting custody of the children to the defendant. In awarding custody of any minor child, a court must be guided by what appears, from all the facts and circumstances, to be for the best interests of the child relative to its temporal, mental, and moral welfare. Wiesner v. Wiesner, 80 S.D. 114, 119 N.W.2d 920. The children in this case are of tender years within the custodial direction contained in SDCL 30--27--19(2):

'As between parents adversely claiming the custody or guardianship, neither parent is entitled to it as of right, but, other things being equal, if the child be of tender years, it should be given to the mother * * *.'

In contents between parents for the custody of minor children of tender years, our law favors the mother in recognition of the universal rule that, if she is a fit and proper person, there is ordinarily no substitute for her care, guidance, love, and devotion. Wiesner v. Wiesner, supra. The trial court has a broad discretion in matters of this nature but it is a judicial discretion, not an uncontrolled one, and its exercise must have sound and substantial basis in the testimony.

'* * * our function in this case is to determine whether there has been an abuse of discretion. In other words, we are not to determine whether the judges of this court would have made an original like ruling, but rather whether we think a judicial mind, in view of the law and the circumstances of the particular case, could reasonably have reached such a conclusion.' Davis v. Kressly, 78 S.D. 637, 107 N.W.2d 5.

The trial court found 'That Plaintiff is not a suitable person to have custody of said minor children, this because of emotional problems which manifest themselves in excessive drinking, and that Plaintiff's primary interests are in her musical career and outside of the home and family.' Reviewing the testimony and the trial court's findings, we can find no abuse of this discretion. The record substantiates the trial court's findings and its granting...