Meinhardt v. Meinhardt
| Decision Date | 17 November 1961 |
| Docket Number | No. 38318,38318 |
| Citation | 111 N.W.2d 782,261 Minn. 272 |
| Parties | Roy A. MEINHARDT, Appellant, v. Deanna Louise MEINHARDT, now Deanna Louise Ostby, by Mabel Fronk, guardian ad litem, Respondent. |
| Court | Minnesota Supreme Court |
Syllabus by the Court.
1. In determining who should have custody of children the trial court is vested with a wide discretion and will not be reversed unless there is a clear abuse of discretion.
2. The welfare of the children is the paramount consideration of the court and a change of custody may be ordered where there is such a change of circumstances of the parties that the welfare of the children will be best served by changing custody.
3. The welfare of minor children of tender years is best served by their being left in the care of their mother when other things are equal.
4. Where the custody of minor children was awarded to the father in an original divorce decree but he had no home for them and placed them in the homes of others, and both parents thereafter remarried and established adequate homes for the children, the trial court did not abuse its discretion in amending the divorce decree so as to award custody to the mother,
Conrad J. Carr, Minneapolis, for appellant.
Nolan, Alderman & Holden, Brainerd, for respondent.
This is an appeal from an order of the trial court amending a divorce decree so as to award custody of two minor children to defendant.
Plaintiff and defendant were married August 15, 1953. At that time defendant was 16 years of age and plaintiff, 20. They had two daughters, one born on April 23, 1954, and the other on October 18, 1955. Plaintiff entered the armed services of the United States, and, after his return, trouble developed between the parties culminating in a suit for divorce brought by plaintiff in 1957. The parties entered into a written stipulation in which defendant, among other things, agreed:
'The permanent care, custody and control of the minor children of the parties is awarded to the plaintiff, subject to the right of the defendant to visit said minor children at reasonable times and places.'
Defendant also waived all claims for alimony and support money. The action was tried as a default case and a divorce decree issued on June 7, 1957, in which the court adopted the stipulation of the parties and pursuant thereto awarded the permanent care, custody, and control of the two minor children to plaintiff, subject to visitation rights granted defendant.
After the divorce was granted, defendant returned to her parents' home in Wadena, Minnesota, and was employed in various restaurants there and at Staples, Minnesota.
Plaintiff since his discharge from the Army has been employed in Minneapolis by Denny Atwood. He had no home for the children so they were first left with plaintiff's sister and brother-in-law and later were placed in the home of Mr. and Mrs. John Farmer, who are distant relatives of plaintiff. It is conceded that they received good care in the Farmer home.
On April 7, 1958, defendant made a motion for amendment of the divorce decree so as to award custody of the children to her. The court ordered investigations by the welfare boards of Wadena County, wherein defendant resided, and Hennepin County, wherein plaintiff resided. Thereafter the court made findings and conclusions that no change should be made in the custody of the children 'at this time.' It would serve no useful purpose to set forth in this opinion the reasons which prompted the court's decision. It is enough to say that at that time defendant had no home in which to care for the children.
On February 23, 1960, defendant submitted to the court a second motion for amendment of the divorce decree so as to award custody to her. A hearing was had on this motion and on June 22, 1960, the trial court entered its findings of fact and conclusions of law amending the divorce decree so as to award custody of the children to defendant.
Between the first and second motions for amendment of the divorce decree, the situation of both parties was considerably altered. On October 25, 1958, defendant married Rudolph Ostby. The marriage was performed in the Methodist Church at Wadena. Ostby is employed as a salesman for an implement dealer in Staples. He works 6 days a week and earns take-home pay of $58 per week. At the time of the hearing on the motion they lived in a 5-room house in the country which they rented for $20 a month. The house was modern and had a large yard and garden, and the parties in their garden raised a considerable quantity of food, much of which was preserved by canning. A child was born to Mr. and Mrs. Ostby on September 22, 1959. They seldom go out in the evening but spend most of their time at home. Both defendant and her husband visited the children at the Farmer home in Minneapolis on several occasions and at other times the children visited at their home.
Plaintiff's status has also changed. On December 12, 1959, he remarried. His new wife had a high school education and was employed by Proctor & Gamble in Minneapolis, where she earned about $260 per month. Plaintiff's take-home pay was about $325 per month. At the time the last motion was submitted to the court, plaintiff and his wife had recently purchased and resided in a duplex in Minneapolis on which they had made a downpayment of $1,000. The property was encumbered for $19,900. They rent one-half of the duplex for $100 per month.
Plaintiff's wife had visited the children at the Farmer home with plaintiff since they first met. She testified that she intended to discontinue working.
Based on the change in circumstances of the parties the trial court granted defendant's motion so as to award custody of the children to the mother. The entire matter, including the original divorce and both subsequent motions, was heard by the same judge, the Honorable Rol E. Barron.
The only question here is whether the trial court abused its discretion in amending the divorce decree so as to award custody of the children to defendant.
The governing statute is Minn.St. 518.18, which reads:
'The court may afterward, from time to time, on the petition of either parent, revise and alter such order concerning the care, custody, and maintenance of the children, or any of them, and make such new order concerning them, as the circumstances of the parents and the benefit of the children shall require.'
1. In determining who should have custody of minor children we have frequently stated that the trial court is...
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