Neis v. Neis, 50148
| Decision Date | 31 August 1979 |
| Docket Number | No. 50148,50148 |
| Citation | 599 P.2d 305,3 Kan.App.2d 589 |
| Parties | Earl L. NEIS, Appellee, v. Connie Sue NEIS, Appellant. |
| Court | Kansas Court of Appeals |
Syllabus by the Court
1. The tender years doctrine which favored custody of minor children with their natural mother absent a finding of unfitness is no longer the dominant consideration in custody awards arising in domestic relations cases.
2. The principle of the tender years doctrine as originally established in Kansas constitutes but one factor to be considered by the trial court in custody determinations.
3. The paramount principle guiding a trial court's custody determination in domestic relations cases must be the best interests of the children.
4. The natural father of a child, otherwise entitled to custody, may not be denied custody simply because his employment compels him to temporarily entrust the care of the minor children to grandparents or others.
5. In custody determinations, it is not necessary to find one parent unfit before awarding custody of minor children to the other parent.
6. An order dividing property under K.S.A. 60-1610 will not be set aside on appeal without a showing of abuse of discretion on the part of the trial court.
7. The granting or denial of a request for attorney fees under K.S.A. 60-1610(G ) will not be set aside on appeal, absent a showing of abuse of discretion of the trial court.
David J. Berkowitz, Lawrence, for appellant.
Eugene C. Riling of Riling, Burkhead & Rhudy, Chartered, Lawrence, for appellee.
Before FOTH, C. J., and REES and SWINEHART, JJ.
This is an appeal from a judgment of the district court of Franklin County annulling the marriage between the plaintiff Earl L. Neis and the defendant Connie Sue Neis. On appeal the defendant contends that the trial court erred (1) in awarding custody of the couple's two minor children to the plaintiff, (2) in dividing the parties' property, and (3) in refusing to award additional attorney fees to the defendant.
The parties were married in Lawrence on November 7, 1976, and two children, twins Earl L. Neis III and Valerie S. Neis, were born on January 31, 1977. This was the plaintiff's first marriage and the second marriage for the defendant. During her first marriage, the defendant had two children who now reside with her first husband in Missouri. The plaintiff is 25 and the defendant is 21 years of age.
During the early fall of 1977, the parties' marriage began to deteriorate and towards the end of September or early October, they separated. Plaintiff charged that his wife had been staying out all night, while she claimed she was at a friend's house. Further, defendant had had a nervous condition due to medical problems impairing her ability to keep the house. She had undergone a partial hysterectomy after the birth of the twins and had been receiving medical attention since that time. While they were together, the plaintiff helped care for the children by feeding, clothing and bathing them.
After the separation, the children remained with the defendant until November 15, 1977, when she voluntarily relinquished custody to the plaintiff. She was nervous and frightened at the time she gave up her children and feared she might hurt them. She had asked the plaintiff if he would be willing to allow her sister-in-law and brother to care for the children. The plaintiff refused this offer and requested that he be given custody of the twins. The defendant believed her husband had legal papers affording him the right to obtain the children, but he denies making such a representation.
After plaintiff petitioned for a divorce, a hearing was held on the defendant's motion to gain custody of the two minor children pending the outcome of the proceedings. The trial court denied her motion, ordered home studies on both parents by SRS, and appointed a guardian ad litem for the children. A few days prior to the divorce hearing, the defendant learned that her former husband had not divorced her in California, and thereafter plaintiff's petition was amended to seek a dissolution of the marriage by annulment.
There was much conflicting testimony concerning the relative abilities of the parties to care for the children. During the divorce proceedings, the children and their father were living with his mother and stepfather in Lawrence. While the plaintiff worked as a welder in Ottawa at Haven Steel, the children remained in Lawrence with a baby-sitter. After work the plaintiff cared for the children by preparing their meals, playing with them and bathing them. Both the plaintiff's mother and stepfather were willing to continue to help care for the children. According to the SRS report, there was sufficient space for the plaintiff and his children in the Lawrence home, although plaintiff did intend to move when his affairs were in order.
Defendant was living in a mobile home in Mayetta with her fiance. Since she had no plans to work, she would be able to remain at home with the children during most of the day, which was viewed as a positive factor in the SRS report.
There was additional testimony that Mrs. Neis had lived with a friend and the children for about a month during her separation from the plaintiff. During that time she often left the children at 3:00 p. m., and did not return until 3:00 a. m. Part of that time she was apparently employed as a barmaid. Once she was gone for three days without communicating with anyone regarding her whereabouts. The children remained with the friend during these times. There was testimony that Mrs. Neis was not properly concerned with the children's welfare while living with her friend.
There were general allegations that Mr. Neis drank to excess on occasion and had once spanked the twins for no reason after coming home drunk, although there was no testimony that he had ever abused the children in any other fashion. In fact, they appeared to be perfectly normal, well-adjusted children.
Besides awarding custody of the children to the plaintiff, the court divided the personal property accumulated by the parties, and ordered the plaintiff to pay the bulk of the couple's debts, although the defendant was ordered to equally pay the indebtedness owed to Personal Thrift. Further, plaintiff was to pay the guardian ad litem fees and costs in the amount of $396.45. At the hearing on the defendant's motion to obtain temporary custody of the children, the court ordered the plaintiff to pay the defendant's attorney fees of $200, but refused to award additional fees to defendant's attorney after the annulment was entered. Defendant alleges that the court improperly divided the parties' property by refusing to award her a 1957 Chevrolet valued at $50 and a color television set which the plaintiff had admittedly given her as a gift.
In her first issue on appeal the defendant urges that since the children were a little over one year old at the time of the hearing they were clearly children of tender age, and as such custody should have been awarded to her, absent a finding of unfitness. St. Clair v. St. Clair, 211 Kan. 468, 507 P.2d 206 (1973). While the trial court did decline to find either parent unfit, a mother need not be found unfit before custody may be awarded to the father. McClaren v. McClaren, 214 Kan. 217, 519 P.2d 720 (1974).
Defendant's reliance upon the tender years doctrine is insufficient to support her argument, since that doctrine's importance has been eroding in recent years. Parish v. Parish, 220 Kan. 131, 551 P.2d 792 (1976); Schreiner v. Schreiner, 217 Kan. 337, 537 P.2d 165 (1975). Rather, the paramount principle guiding the trial court's custody decision must be the best interests of the children. Schreiner v. Schreiner; Hardenburger v. Hardenburger, 216 Kan. 322, 532 P.2d 1106 (1975); Dalton v. Dalton, 214 Kan. 805, 522 P.2d 378 (1974). All other considerations have been found subordinate to the best interest determination.
In Hardenburger v. Hardenburger, 216 Kan. at 326, 532 P.2d at 1110, the court stated that tender age may continue to receive consideration in custody cases:
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