McKinney v. Kelley

• Decision Date: 05 November 1957
• Docket Number: No. 1085,1085
• Citation: 141 A.2d 660,120 Vt. 299
• Parties: Norton D. McKINNEY v. Georgia H. McKinney KELLEY.
• Court: Vermont Supreme Court

Page 660

141 A.2d 660

120 Vt. 299

Norton D. McKINNEY v. Georgia H. McKinney KELLEY.

No. 1085.

Supreme Court of Vermont.

Nov. 5, 1957.

On Motion for Reargument March 5, 1958.

Writ of Certiorari Denied June 2, 1958.

See 78 S.Ct. 1135.

Lawrence C. Jones, Rutland (Albert G. Avery, New York City, of counsel), for plaintiff.

Before JEFFORDS, C. J., and CLEARY, ADAMS, HULBURD and HOLDEN, JJ.

HULBURD, Justice.

The petitioner seeks under V.S. 47 § 3252 to have a custody order modified. The petition was served upon the petitionee in Connecticut, following which she notified the court that she did not care to appear. Accordingly, the case was heard below as an uncontested matter. After hearing the petitioner's evidence, the trial court refused to modify the custody order and dismissed the petition. The case comes here on the petitioner's exceptions to the action of the county court.

Extensive findings were made by the court below. To some of these the petitioner excepted. He also saved many exceptions to the court's refusal to find certain facts as requested. We will briefly summarize those facts found which stand unchallenged by any exception briefed by the petitioner. On July 12, 1940, the petitionee and petitioner were married. The parties had two children: Denman, born January 31, 1942, and Kirk, born Oct. 27, 1944. During June of 1945, the McKinneys came to Middletown Springs, Vermont to live. Here Mr. McKinney, with his wife as partner, engaged in the business of raising animals for sale to laboratories for research purposes. In carrying on this enterprise, the McKinneys needed further help and they employed Kay Francis Kelley to assist them. Some time thereafter an incident occurred concerning which the petitioner introduced evidence resulting in the following finding by the court:

'5. During the month of September or October of the year 1950 Kay Francis Kelley, an employee of the Libellant and the Libellee, made a business trip with the Libellee to New York and had occasion to stay overnight in a New York state motel. Whether or not said parties occupied the same or separate rooms does not appear in evidence. Upon their return to Middletown Springs the following day the Libellant accused the Libbellee of infidelity and the Libellee's reply to said accusation was that 'nothing happened at all'. * * * This particular incident appears to have lead to the separation of the Libellant and the Libellee during the month of November, 1950, at which time said Libellee left said Libellant and went to New York City, stayed about a month returning to Middletown Springs for about a week after which she returned to New York.'

On January 17, 1952, in Rutland County Court the petitioner filed his libel for divorce charging adultery. Thereafter the adultery charge was withdrawn and on February 3, 1953, the petitioner was granted a divorce from the petitionee on the ground of intolerable severity. Custody of the two children was decreed by the court in accordance with a stipulation of the parties. Under it, Denman went to the father, and Kirk, to the mother. Kirk has remained with his mother in Connecticut ever since, and it is as to him that the petitioner seeks a change in custody.

On September 21, 1956, the petitionee remarried. It was the second marriage also for her new husband. He was Kay Francis Kelley, the McKinney's former employee. Kelley's first marriage had terminated in a divorce. He had instituted divorce proceedings on November 8, 1955. His wife had filed a cross-complaint, charging desertion; whereupon Kelley withdrew his complaint and a divorce was granted the wife uncontested by Mr. Kelley. Mrs. Kelley was awarded the custody of three infant children and Kelley was directed to pay the sum of $27 weekly for their support.

After Kelley and the petitionee were married in 1956, they went to live in Andover, Connecticut, in a home purchased by Mr. Kelley. Kirk had continued with his mother ever since she had separated from her husband in 1950 and went on doing so in the new home. He has come to refer to Mr. Kelley as 'father'. Both Mr. and Mrs. Kelley are employed: she for Coca Cola Bottling Company at about $50 a week, while he averages to work forty hours per week at an hourly rate of $2.37 per hour.

It is largely in the light of the finding No. 5 which we have quoted that the petitioner claims that the subsequent marriage by the petitionee to Kelley (some six years later) furnishes a compelling reason for changing the custody of Kirk from his mother to the petitioner. Such a result the petitioner claims is further supported by additional facts which he requested the court to find.

Before turning to these requests it might be well to review certain legal principles which are applicable to a problem of this sort.

At the outset it is well settled that in order to warrant the modification of a custody order, a change in conditions or circumstances must be shown. Buckminster v. Buckminster, 38 Vt. 248, 250; Sand v. Sand, 116 Vt. 70, 71, 69 A.2d 7. It is equally well settled that it is the welfare of the child which in the last analysis is determinative in a custody matter. In re Cooke, 114 Vt. 177, 183, 41 A.2d 177; Deyette v. Deyette, 92 Vt. 305, 309, 104 A. 232, 4 A.L.R. 1115. Bringing the foregoing principles together, it should be apparent that 'change of circumstance' is not a 'ground' for modification of a custody decree. It is a prerequisite. In other words, to justify the modification of a custody order the petitioner must first show that there has been a change of circumstances, and then go on to show that under the new conditions a change of custody would be for the best interests of the child. Fortunately, in this world not all changes in condition are for the worse; some are for the better, and when a child is thus favored, obviously he should not be unsettled. It is for the trial court to determine whether a change of custody is desirable under the altered circumstances. This determination often involves a balancing of the advantages and disadvantages which would result in granting custody to one or the other of two parents. Raymond v. Raymond, 120 Vt. 87, 95, 132 A.2d 427, 431. Thus it becomes a question of judgment and sound discretion, and if the county court does not abuse its discretion in the determination, there is nothing for this Court to review. 27 C.J.S. Divorce § 324, p. 1263; Miller v. Miller, 89 Vt. 547, 548, 95 A. 928.

Against the background of these legal principles, what are we confronted with here? The petitioner points to the fact that the petitionee has remarried, and this he says furnishes the required change of circumstances. Moreover, he asserts, not only has the petitionee remarried, but that marriage was to the very man with whom the petitionee was carrying on an adulterous relationship while she was still the wife of the petitioner. The findings of the court below do not support this position. No adultery has been found. It is clear that the court was not satisfied that adultery had been committed, even though there was evidence tending to indicate to the contrary. The most that can be claimed for the findings is that the court found that the petitionee, while married to the petitioner, became infatuated with Kelley around 1950, that the petitioner became aware of this infatuation, that it led to trouble between the petitioner and petitionee and a divorce in 1953 and that in 1956 the infatuation culminated in a marriage between the petitionee and Kelley. Although refusing to find that the prior relationship of Kelley and the petitionee was illicit, it did find it to be 'unconventional'.

In these circumstances did the court below, in refusing to modify the custody order, abuse its discretion? This is a question which we will discuss a little later in the opinion.

Before reaching it, we must first consider the petitioner's requests to find, for the petitioner claims that if the court had properly found all that he requested, his case would have been greatly strengthened and a different ultimate decision would have been dictated.

The request are twenty-four in number. Almost all are unfortunately long, often containing numerous sentences and several subject matters. The petitioner has proceeded on the theory that every piece of evidence however trifling should be solidified into a finding. He has worked with a very fine brush, indeed. This is not the purpose of findings of fact. The law does not contemplate that the trial court should re-state the evidence nor report all the subordinate facts. Partridge v. Cole, 98 Vt. 373, 375, 127 A. 653. Moreover, when a request is multiple in character, there is always the risk that some valid element of it may become embedded in other elements which the requesting party is not entitled to have found. As a result the good falls with the bad, for the whole must be supported by the evidence and not merely a part. See 89 C.J.S. Trial § 619, at page 441. Most of the petitioner's requests are of this character. This includes Nos. 2, 3, 4, 5, 6, 8, 9, 10, 11, 13, 13, (there are two '13's') 14, 15, 16, 17, 18, 19, 20, 21, 22, 23. Their number and length do not permit us to quote them individually. The remainder have not been briefed and so are waived. After a careful examination of each we find no error in refusing to find as requested. It was for the trial court to interpret and evaluate the evidence and present its resultant findings on the essential elements of the case. There has been no error or omission in this respect.

In addition to taking exceptions to the court's refusal to find, the petitioner has excepted to certain findings as made. The first of these is to the statement of the court in Finding 4 that petitioner 'appeared satisfied with his wife and the manner in which she attended to the two minor children'; also in Finding 5 the court stated 'this appears to be the only incident'; and further in Finding 20 ...