Maston v. Maston

• Decision Date: 07 April 1951
• Docket Number: No. 38252,38252
• Citation: 229 P.2d 756,171 Kan. 112
• Parties: MASTON v. MASTON.
• Court: Kansas Supreme Court

Page 756

229 P.2d 756

171 Kan. 112

MASTON v. MASTON.

No. 38252.

Supreme Court of Kansas.

April 7, 1951.

Syllabus by the Court.

1. Subsequent to the decree in a divorce action under G.S.1949, 60-1510, the district court has a continuing jurisdiction to change or modify an order therein

made for custody and support of a minor child when facts and circumstances are shown which make such change or modification proper.

2. In the absence of abuse of sound judicial discretion in awarding the custody and control of a minor child, the judgment of the trial court will not be disturbed on appeal.

3. Under the provisions of G.S.1949, 60-1507, attorney fees are not recoverable where a former wife, on her own application, seeks to change that part of a judgment previously entered in a divorce action relating to custody of a minor child.

William Keith, of Wichita, was on the briefs for appellant.

Kenneth M. Nohe, of Wichita, argued the cause, and Eugene G. Coombs, Robert F. Hudson, Robert Dauffenbach, and George D. McCarthy, all of Wichita, were with him on the briefs for appellee.

WERTZ, Justice.

This is an appeal from an order of the district court sustaining a motion filed by the appellee (mother) for change of custody of her thirteen year-old son from the appellant (father) to the appellee. The motion was filed in the original divorce action in which appellant prevailed. The order appealed from also awarded to appellee child support and attorney's fees.

Appellant charges error of the court (1) in abuse of its judicial discretion in awarding change of custody on the evidence adduced; (2) in awarding defendant's attorney fees and assessing costs against appellant; (3) in overruling appellant's motion for a rehearing; and (4) in questioning the child informally and basing its decision wholly on the child's preference.

Briefly, the facts involved herein are as follows: Appellant, Albert W. Maston, obtained a divorce by default from appellee, Elsie Maston, on March 21, 1949, on the ground of gross neglect of duty, and custody of the parties' three children, including Albert Leroy Maston, now thirteen years old and the child involved in this custody proceeding, was awarded to the father, appellant here. About the same time appellant's present wife, Kathryn, obtained a divorce from Everett Mayfield on the grounds of gross neglect of duty and extreme cruelty, and custody of that couple's two infant children was awarded to her. Afterward the parties intermarried, Kathryn Mayfield to Albert W. Maston and Elsie Maston to Everett Mayfield, so that all five minor children became members of appellant's family. $15.00 weekly was contributed by Everett Mayfield for support of his two children.

On June 2, 1950, fourteen months after the Maston divorce was granted, the two Maston boys, Albert Leroy and Richard D. Maston, aged 19, voluntarily left appellant's home and went to live with their mother, the appellee. On July 30, appellee filed a motion in the original divorce action asking for change of custody of Albert Leroy, and after listening to the evidence, the court on November 13, 1950, ordered custody of Albert Leroy changed from the father to the mother and ordered appellant father to pay the sum of $12.50 weekly for child support and $50.00 attorney's fee. From this order of the trial court, appellant brings this appeal here. Thereafter appellee filed a motion in this court for allowance of child support, attorney's fees and expenses pending the appeal, which motion was granted in part.

We will first consider whether the lower court abused its discretion in changing the custody of the minor child. In an unbroken line of decisions of this court, it has been held that the jurisdiction of the district court over the custody and support of minor children in a divorce action is a continuing jurisdiction, G.S.1949, 60-1510, and that the court may on proper motion and notice modify and change any order previously made providing for such custody and support whenever circumstances are shown which make such modification proper. Hayn v. Hayn, 162 Kan. 189, 175 P.2d 127; Teegarden v. Teegarden, 155 Kan. 195, 124 P.2d 464; Phillips v. Phillips, 163 Kan. 710, 712 186 P.2d 102; Sharp v. Sharp, 154 Kan. 175, 176, 117 P.2d 561.

Moreover, it is also a well established rule in this state that whether the court will change the custody of children rests in the sound discretion of the trial court in view of all the facts and circumstances shown by the evidence. Prier v. Lancaster, 169 Kan. 368, 371, 219 P.2d 358; Kogler v. Kogler, 163 Kan. 62, 179 P.2d 940; Hayn v. Hayn, supra.

Appellant concedes the foregoing rules of law but contends that appellee's evidence for change of custody of the child was insufficient to justify a change of the custody and that the lower court disregarded the evidence and based its decision wholly upon the child's preference to live with his mother. An examination of the record discloses that the trial court heard and considered ample evidence concerning the welfare of the child. The testimony of both real and...