Maudlin v. Maudlin

• Decision Date: 02 January 1948
• Docket Number: 7363
• Citation: 188 P.2d 323,68 Idaho 64
• Parties: MAUDLIN v. MAUDLIN
• Court: Idaho Supreme Court

188 P.2d 323

68 Idaho 64

MAUDLIN v. MAUDLIN

No. 7363

Supreme Court of Idaho

January 2, 1948

Appeal from District Court, Seventh Judicial District, Washington County; Thos. E. Buckner, Judge.

Affirmed.

Frank D. Ryan, of Weiser, and Dunlap & Dunlap, of Caldwell, for appellant.

The child's welfare as a normal human being and a future individual is a polar star by which the court must be guided in awarding custody of children. Krieger v. Krieger, 59 Idaho 301, 81 P.2d 1081; Kirkpatrick v Kirkpatrick, 52 Idaho 27, 10 P.2d 1057; Ruthruff v Ruthruff, 52 Idaho 330, 14 P.2d 958.

It is the established rule of this court and other courts as well that, all other considerations being equal, a child of tender age or a girl of even more mature age can and will be reared trained and cared for best by its mother. This conclusion needs no argument to support it, for it arises out of the very nature and essence of motherhood. Nature has ordained it. Krieger v. Krieger, 59 Idaho 301, 81 P.2d 1081, supra.

Smith & Ewing, of Caldwell, and Frank Kibler, of Nampa, for respondent.

If the welfare of the children require, the court may order a change in the custody even though there is no change in the circumstances. Swenson v. Swenson, 101 Cal.App. 440, 281 P. 674, at page 676; Wolz v. Wolz, 110 Mont. 458, 102 P.2d 22; Ruthruff v. Ruthruff, 52 Idaho 330, 14 P.2d 958.

Courts have very liberal powers to grant a change in the custody of children and the mere fact that the custody of very young children is taken from the mother and given to the father is not an abuse of discretion. 31-785 I.C.A. 1932; Olson v. Olson, 47 Idaho 374, 276 P. 34; Ruthruff v. Ruthruff, 52 Idaho 330, 14 P.2d 958; Damm v. Damm, 82 Mont. 239, 266 P. 410.

Miller, Justice. Budge, C. J., and Givens and Hyatt, JJ., concur. Holden, J., did not participate.

OPINION

Miller, Justice.

January 13, 1937, Elizabeth Maudlin, the appellant herein, and Nathan B. Maudlin, the respondent, were married at Mountain Home, Idaho. August 10, 1944, appellant, as plaintiff, filed a complaint in the District Court of the Seventh Judicial District of Idaho in and for the County of Washington, and in which she sought a divorce, from respondent, under three separate causes of action, to wit, failure to provide, desertion and cruel treatment. The complaint shows that there are two children born of said marriage, to wit: Beverly Maudlin, a daughter, age five years and Bernard Maudlin, a son, age nine months, both of which children were with the plaintiff, and within the jurisdiction of the District Court of the Seventh Judicial District. November 25, 1944, the court having heard the testimony on behalf of the parties, found that the material allegations of the appellant's complaint were true and ordered, adjudged and decreed that the marriage is dissolved. It was further ordered, adjudged and decreed that the appellant have the care, custody and control of the minor children, Beverly Joan Maudlin and Bernard Nathan Maudlin, subject to the right of respondent to visit said children at reasonable times. It was ordered and adjudged that respondent pay appellant the sum of $ 50 per month on the 5th day of each month from and after the first day of December, 1944, until the further order of the court, the same to be paid for the support and education of said minor children.

November 22, 1946, respondent filed a motion to modify the decree of divorce in which various reasons for modification are urged, to wit (1) that appellant has failed to care for, support, train and guide said children awarded to her; (2) that appellant has given up the custody of said children to her parents; (3) that appellant has entered into a written contract with respondent surrendering the possession of said children, and has shown no interest in their custody; (4) that appellant has shown herself unfit, neglectful and irresponsible in caring for said children; (5) that the continuance of the custody of said children in the hands of appellant would be irreparable harm to the personalities, characters and moral development of said children. December 6, 1946, an order was made and served on appellant, directing her to appear in the Seventh Judicial District Court, January 6, 1947, to show cause why that certain decree made and entered November 25, 1944, should not be modified.

February 21, 1947, the Hon. Thomas E. Buckner, District Judge, made and filed his findings of fact, conclusions of law and decree, and from which it is made to appear that the hearing on the motion to modify the decree came on for hearing January 6, 1947, appellant appearing in person and by counsel, and respondent in person and by his attorneys; that witnesses were sworn and examined and documentary evidence introduced by both parties, and the court having heard the testimony and examined the evidence and proofs offered by the parties, and being fully advised in the premises, finds the facts to be practically the same as the charges contained in the motion to modify the decree, with the added condition that the best interests and well being of Beverly Joan Maudlin and Bernard Nathan Maudlin require their removal from the custody and control of appellant and placed in the custody and control of respondent, a fit and proper person to have the care, custody and control of said children. The court concluded that the order of November 25, 1944, should be modified depriving appellant of the future care, custody and control of said children, and that respondent being a fit person, shall be granted the care, custody and control of said children, subject to the right of appellant to visit them at reasonable times and places, and the further order of this court. The decree granting change of custody of said minor children follows closely the findings and conclusions with an added provision that said children shall not be taken from the states of Oregon or Idaho, except temporarily for not to exceed two weeks, without the written permission of one of the judges of the Seventh Judicial District. Court. February 25, 1947, an appeal was taken to this court from the order and decree of February 21, 1947, awarding the custody and control of said children to respondent.

March 1, 1947, appellant filed her Notice of Intention to Move for a New Trial. March 13, 1947, motion for new trial was dated, served March 14, 1947, and filed March 17, 1947. The motion for new trial seeks to have the order or decree of February 21, 1947, set aside and to grant a new trial on the following grounds:

(1) That the evidence is insufficient to justify the findings of fact and conclusions of law and decree in the following particulars:

(a) That the appellant, being the mother of said children and having remarried and established a good home, and was taking good care of said children, was more fitted to raise and rear said children and provide for their education than is the respondent; (b) that the evidence produced at said trial shows that the respondent's conduct was such as to make him an improper person to have the care and custody of said children; (c) that there was no evidence produced to justify the court in taking the custody of said children away from the appellant and giving such custody to the respondent; (d) that the evidence is insufficient to show that the appellant was not a fit and proper person to have the care and custody of said children; and the evidence establishes the fact that appellant has a good home, a good husband and good surroundings in which to rear and educate said children and that she is a fit and proper person so to do and the respondent by his conduct, as shown by the evidence, did not provide a decent home and environment in the care and upbringing of said children; (e) that there was an abusive discretion by the said court and the court was biased and prejudiced and the evidence was insufficient for the court to award the custody of said children to defendant, even though the court found that appellant was unfit to have the care and custody of said children when it appeared that respondent was unfit to have the care and custody of said children and that the grandparents of said children, Mr. and Mrs. John Oster, were people of excellent reputation and were willing to take the care and custody of said children and rear and bring them up in the proper way; (f) that it appears from the evidence that the welfare and best interest of said children would be served by placing their custody with the appellant and keeping said children away from the respondent; (g) that it clearly appears from the evidence that the respondent is not a fit and proper person to have the care and custody of said children.

(2) That the trial judge was biased and prejudiced in making and entering the findings, conclusions and decree and the same were not in accordance with the best interest of the children and did not promote their welfare and upbringing.

(3) That the trial court abused its discretion in refusing to place the custody of said children with the grandparents of appellant herein and that the best interest of said children for their welfare would be best promoted by continuing the custody of said children with said grandparents.

Appellants motion for a new trial came on for hearing March 27, 1947. March 31, 1947, the court rendered its written opinion that said motion be denied and disallowed, which was filed April 8, 1947. May 3, 1947, appellant made and served notice of appeal from the order denying appellant's motion for a new trial, which was filed May 5, 1947. April 3, 1947, it was stipulated between the parties, that the decree granting change of custody of minor children made on or about February 21, 1947, and from which appellant filed a...