Ness v. Ness

• Decision Date: 20 December 1960
• Docket Number: No. 38862,38862
• Citation: 357 P.2d 973,1960 OK 259
• Parties: Kenneth NESS, Plaintiff in Error, v. Barbara NESS, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 973

357 P.2d 973

1960 OK 259

Kenneth NESS, Plaintiff in Error, v. Barbara NESS, Defendant in Error.

No. 38862.

Supreme Court of Oklahoma.

Dec. 20, 1960.

Syllabus by the Court

1. The provisions made for the care and custody of a minor child of divorced parents are subject to modification by the trial court on the basis of some change of circumstances occurring since the last prior decree or order or upon showing of some fact unknown at that time.

2. In awarding the custody of a minor, the court should give paramount consideration to what appears to be for the best interest of the child in respect to its temporal, mental and moral welfare.

3. The action of the trial court in modifying a previous child-custody order will not be disturbed on appeal unless so clearly against the weight of the evidence as to constitute an abuse of discretion.

Appeal from District Court of Washington County; Laton L. Doty, Judge.

Application of mother for modification of a prior order awarding custody of minor children to father. From judgment granting application, the father appeals. Affirmed.

John W. Tillman, Fred A. Tillman, Don Hampton, Pawhuska, for plaintiff in error.

Arthur J. Boose, Bartlesville, for defendant in error.

BERRY, Justice.

The parties hereto were granted a divorce on the ground of mutual incompatibility. The decree, entered on June 5, 1957, recites that while both are fit parents, 'it is at the present time to the best interest of the children' that their custody be confided to the father. Under the terms of the decree, the mother was to have the children on Wednesday and Saturday nights and on Sunday until 6:00 p. m. She was further granted the right to visit them 'at all reasonable places, times and intervals.'

On January 7, 1958, the mother applied for an order modifying the provisions of the decree and sought full custody. On June 18, 1958, the trial court, after hearing evidence, directed by its order that the father retain the custody of the children. The mother was granted the right to have them on Saturday and Sunday of the fourth week of each month. Both parties were restrained, under penalty of contempt, from interfering with or molesting one another.

The present application for change of custody was filed by the mother on May 13, 1959. It alleges in substance that (a) father has refused to accord her access to the children in conformity with the terms of the prior order; (b) she has remarried; (c) she is now able to furnish a suitable home for the children and properly care for them. In his response the father states that the mother is an unfit parent and that the children desire, and it is for their best interest, to remain with him. After a full hearing the trial court modified its previous order by awarding the care and custody of the minor children to their mother. The father was accorded the right of custodial visitation on the second and fourth weekends of each month from 4:00 p. m. Saturday until 6:00 p. m. Sunday, and for a period of two weeks during the summer school vacation. From this order, the father has perfected the present appeal. The parties will be given their designation below. The mother will be referred to as the plaintiff and the father as defendant.

Following her divorce, plaintiff worked as a saleslady in the daytime and attended business college at night. Later she enrolled in a course for beauty operators. While learning this trade she was employed evenings as a clerk in a drug store. She has remarried and now occupies a six-room house. Her husband is employed at a fairly comfortable salary. A licensed beautician, she is 'renting a booth' from her mother who operates a beauty salon. She can arrange her own working hours and has some savings. If granted the custody of her children, plaintiff testified, she would devote all of her time to their care.

At the time of the trial, the children, both girls, were 7 and 5 years of age. They resided with the defendant at the home of his parents who are both gainfully employed. A good portion of the time the girls remained under the charge of a stranger. Defendant and his mother had been antagonistic and resentful toward the plaintiff. On occasions she had been prevented from seeing the children. Several witnesses related that defendant and his mother had often expressed their dislike for the plaintiff in the presence of the girls.

Defendant contends the trial court erred as a matter of law--(a) in failing to require plaintiff to show some change in circumstances occurring since the rendition of the last order, which by its terms awarded custody to the defendant; (b) in requiring defendant to establish plaintiff's unfitness as a mother; (c) in allowing plaintiff to relitigate matters determined in the previous custody proceedings.

The provisions for care and custody of minor children may not be modified unless it be shown that the circumstances of the parties have changed or unless material facts are disclosed, which were either unknown or could not have been ascertained with...