Murphy v. Murphy

• Decision Date: 25 May 1948
• Docket Number: 3505.
• Citation: 193 P.2d 850,65 Nev. 264
• Parties: MURPHY v. MURPHY.
• Court: Nevada Supreme Court

193 P.2d 850

65 Nev. 264

MURPHY v. MURPHY.

No. 3505.

Supreme Court of Nevada

May 25, 1948

Rehearing Denied Jue 30, 1948.

Appeal from Second Judicial District Court, Washoe County; A. J Maestretti, Judge.

Action by Ruth E. Murphy against Lawrence E. Murphy for divorce. From an order setting aside the original decree in regard to custody of minor children, an order awarding custody to defendant and an order denying plaintiff's motion for new trial, plaintiff appeals.

Orders affirmed.

See also, 184 P.2d 1004.

John S Sinai, of Reno, for appellant.

J. T. Rutherford and R. K. Wittenberg, both of Reno, for respondent.

BROWN District Judge.

This action was commenced in the Second Judicial District Court of the State of Nevada, in and for the County of Washoe, by Ruth E. Murphy, plaintiff, against Lawrence E. Murphy, defendant, on the 31st day of August, 1946, by the filing of a verified Complaint, in which the plaintiff alleged, as the ground for a divorce, extreme cruelty, and that there were two minor children, John Lawrence Murphy, aged 8 years, and Elizabeth Leontine Murphy, aged 12 years, issue of the marriage. Thereafter, and on September 9th, 1946, an Appearance and Waiver, executed by the defendant, was filed in the action, and on the same day the matter was heard by the Court and a Decree of Divorce was entered in favor of the plaintiff, and the custody of the two minor children was awarded to the plaintiff. The appellant, plaintiff in the lower court, has appealed to this Court from a judgment and order entered in said District Court on the 10th day of July, 1947, as amended, on the 18th day of July, 1947, modifying the Judgment and Decree entered on the 9th day of September, 1946, as aforesaid, in respect to the custody of the two minor children of the parties, and also from an order denying plaintiff's motion for a New Trial, made and entered in the minutes of said trial court on the 4th day of August, 1947. The parties to this appeal will be referred to as they appeared in the Court below.

On the 24th day of January, 1947, the defendant filed in the lower Court a Notice of Motion to modify and change the original Decree of Divorce in reference to the custody of the two minor children, or in the alternative for an order setting aside the original Decree of Divorce in toto, and permitting the defendant to withdraw his appearance in the action. This motion was made upon the grounds that the best interests of said children demanded a full and complete rehearing on the question of their care and custody, and that the appearance of the defendant was secured on fraudulent misrepresentations and promises of the plaintiff, and was heard by the Court on March 18th, 1947. At that time the Court made the following order, to-wit:

'It Is Ordered that a hearing on the merits of the Motion, in the interest of the welfare of the minor children of the parties, in order that the Court may determine whether or not the decree of the Court entered herein, should be amended, set aside or clarified; that pending such hearing and determination, the younger of the minor children, shall continue in the custody of the plaintiff.'

Thereafter, and on the 10th day of July, 1947, a hearing was had on the merits of the motion, and the Court entered the following Order Modifying Decree, to-wit:

'It is ordered, adjudged and decreed, that the decree heretofore entered herein on the 9th day of September, 1946, be and the same is hereby modified in the following respect:

'The portion thereof beginning on line 18, of page two thereof, reading as follows:

'That the agreement entered into between the parties, signed by the plaintiff on the 3rd day of September, 1946, and signed by the defendant on the 5th day of September, 1946, should be disapproved by the Court, and the plaintiff should be awarded the sole care, custody and control of the said minor children of the parties, John Lawrence Murphy and Elizabeth Leontine Murphy,' be and the same hereby is stricken, and in lien thereof, there is hereby inserted the following:

'The court further orders, adjudges and decrees that the defendant is hereby awarded the care, custody and control of John Lawrence Murphy and Elizabeth Leontine Murphy, the minor children of the parties hereto, and the court expressly reserves jurisdiction of the custody and support of the children during their minority.

'The mother may have the said children with her for two weeks of each year, at a time during the school vacation, but the must make suitable arrangements for the children to be transferred from their home to hers and back, and the defendant shall bear one half of the cost of their transportation.'

Thereafter, and on the 18th day of July, 1947, an Amended Order Modifying Decree was entered by the Court, which included the entire Order made on July 10th, 1947, and added the following, to-wit:

'This order shall become effective on August 20th, 1947, provided, however, that the plaintiff on or before such date shall transport, John Lawrence Murphy, the minor child the issue of the above parties, to Cincinnati, Ohio, at her own expense.'

One of the minor children, John Lawrence Murphy, is now living with the plaintiff at her home in Reno, Nevada, and the other minor child, Elizabeth Leontine Murphy, is now living with her father, the defendant, in Cincinnati, Ohio. Under the Amended Order Modifying Decree, the child living with the plaintiff in Reno, Nevada, was to be delivered by the plaintiff to the defendant in Cincinnati, Ohio, on or about the 20th day of August, 1947, and at the time the plaintiff filed her appeal in this Court, the said child was and now is in her custody in Reno, Nevada.

Upon reading the record, it is very apparent that the main question involved in this appeal revolves around a purported agreement signed by the defendant on September 3rd, 1946, and by the plaintiff on September 5th, 1946, wherein the plaintiff agreed that the defendant was to have the care, custody, and control of the two minor children. This agreement was never introduced in evidence at the time of the trial on September 9th, 1946, by the plaintiff, and the agreement itself was never presented to the trial court for its consideration. However, on the 29th of August, 1946, the plaintiff sent the following telegram to the defendant, which was received by him in Cincinnati, Ohio, on August 30th, 1946, to-wit:

'Since you agree to sign will you have Tom or Rich phone or wire attorney here to represent you? Do this Friday so case can go to Court Saturday. Have already waited two weeks for your decision with representative here you can be sure your terms have been agreed to and signed before decree is granted.' Signed, 'Ruth.'

The record does not disclose that plaintiff's counsel had any knowledge of this telegram.

At the time of the trial, counsel for the plaintiff asked the following questions with reference to the Agreement, to-wit:

'Q. You and you husband signed an agreement recently whereby the husband is to take the children giving you the right to have them for two months out of the summer and the right of visitation? A. Yes.

'Q. And you have also deed him your interest in the home? A. Yes.

'Q. He required that of you? A. Yes.

'Q. Was that entirely satisfactory to you? A. No.

'Q. What was your reason for signing such an agreement? A. Because then he would sign so that I could have a legal decree in Ohio, and I simply couldn't live with him longer.

'Q. He said the decree would be no good in the State of Ohio? A. Yes.

'Q. You signed the agreement very reluctantly, didn't you? A. Yes, very.'

The Judge made the following minute order about 1:30 o'clock P.M. on the 9th day of September, 1946, to-wit:

'The Court: Decree to plaintiff on the ground of cruelty, the minor children to plaintiff.'

Thereafter, at about 4:30 o'clock in the afternoon, Findings of Fact and Conclusions of Law and a Decree of Divorce were submitted to the District Judge for signature by counsel for the plaintiff, which were signed and filed on the same day at 4:47 o'clock P.M. In the Judgment and Decree, in addition to the Decree of Divorce, the following Order was included:

'That the Agreement entered into between the parties, signed by the plaintiff on the 3rd day of September, 1946, and signed by the defendant on the 5th day of September, 1946, is disapproved by the Court, and the Court does hereby order, adjudge and decree that plaintiff shall be and she hereby is awarded the sole care, custody and control of the minor children of the parties, John Lawrence Murphy and Elizabeth Loentine Murphy.'

The defendant had no knowledge of the Judgment awarding the custody of the children to the plaintiff until about September 13th, 1946. Thereafter, and in November, 1946, the plaintiff while in Cincinnati, Ohio, physicially removed the minor child, John Lawrence Murphy, from there to Reno, Nevada. At the time of the hearing on the Motion to Modify the Decree in regard to the custody of the minor children on July 10th, 1947, the Judge of the district court and counsel for the plaintiff made the following remarks, to-wit:

'The Court: I want to say this, at this time: that the decision of the Court would have been different if the Court had been confronted with this agreement at the time of the trial of the case.

'Mr. Sinai: Your Honor, may I make a statement in that respect at this time?

'At the time of the divorce action, Mrs. Murphy testified--I had in Court with me a copy of the agreement, and the transcript of evidence----

'The Court: I read it, and am familiar with it.

'Mr Sinai: Your Honor recalls that, then I won't need to bother the Court with that. Then, the witness, having testified as...