Nielsen v. Nielsen

• Decision Date: 03 August 1964
• Docket Number: No. 9434,9434
• Citation: 394 P.2d 625,87 Idaho 578
• Parties: Aletha E. NIELSEN, Plaintiff-Appellant, v. John R. NIELSEN, Defendant-Respondent.
• Court: Idaho Supreme Court

Page 625

394 P.2d 625

87 Idaho 578

Aletha E. NIELSEN, Plaintiff-Appellant, v. John R. NIELSEN, Defendant-Respondent.

No. 9434.

Supreme Court of Idaho.

Aug. 3, 1964.

Paul B. Ennis and Thomas A. Miller, Boise, for appellant.

Gigray & Boyd, Caldwell, for respondent.

KNUDSON, Chief Justice.

Appellant Aletha E. Nielsen (plaintiff) and respondent John R. Nielsen (defendant) intermarried January 24, 1949. During the marriage four daughters were born to them, and at the time this action was heard by the trial court (April 1963) said children were between ten and four years of age.

On November 7, 1962, appellant filed her complaint seeking a divorce upon the ground of extreme cruelty, together with custody of the children, child support, alimony and the community property. Respondent answered and as a cross-plaintiff prayed for a divorce upon the ground of extreme cruelty, custody of the children and an equitable distribution of the community property. On July 3, 1963, a judgment and decree was entered granting appellant a divorce, equal division of the community property, custody of the children and child maintenance, also alimony to be paid for one year.

One of appellant's principal contentions upon this appeal is that the trial court erred in providing for what appellant terms 'divided custody' of the children. Under paragraph VI of the findings of fact it is stated that the court finds each of the parties to be a fit and proper person to be awarded the care, custody and control of the children; but also finds that their custody should be awarded to appellant subject to certain rights of respondent. Appellant assigns error to the following quoted portion of said paragraph VI, to-wit:

'* * * subject, however, to the right on the part of the defendant to visit with said children and to have said children visit with him at all reasonable times and places, including the right on the part of the defendant to have each child during her minority visit with him during the summer months of June, July and August of each year for at least sixty (60) days while said children are minors or unmarried.'

Appellant contends that such finding and a like provision in the decree, is not warranted or supported by the evidence.

The argument presented by appellant in support of this claimed error is directed principally to the granting of sixty days' custody of the children to respondent. Appellant argues that respondent is more preoccupied with his work as a physician than the average father; that the children will be left to the care of employed help or to respondent's present wife; that although the record is silent as to the children's reaction to respondent's remarriage it would be only natural for the children to resent his present wife; that two months out of each year is too long for these children to be away from their mother.

In considering this contention it should be kept in mind the record discloses that a very devoted and affectionate relationship exists between respondent and his children and that the court very properly found he was a fit and proper person to be awarded custody of the children. It must be conceded that the parental relationship of a devoted father should be preserved, not destroyed, if such can be done without otherwise unduly disturbing the children involved. If the trial court entertained some apprehension of estrangement of the children from their father and by such provision in the decree sought to avoid such happening, it can not be considered as an abuse of discretion. The argument presented by appellant is based for the most part on happenings which may or may not come to pass.

It is not unusual for the courts of Idaho to grant one parent the right to have child custody for one or two months during the year while the other parent is given custody for the remaining months of the year, Larkin v. Larkin, 85 Idaho 610, 382 P.2d 784; Merrill v. Merrill, 83 Idaho 306, 362 P.2d 887; Smith v. Smith, 67 Idaho 349, 180 P.2d 853; Tobler v. Tobler, 78 Idaho 218, 299 P.2d 490, where the welfare and best interest of the child require this. In Merrill v. Merrill, supra, this court noted that

'* * * While divided custody of children should not be encouraged, Peterson v. Peterson, 77 Idaho 89, 288 P.2d 645; Wilson v. Wilson, 77 Idaho 325, 291 P.2d 1113, 1115; Application of Anderson, 79 Idaho 68, 310 P.2d 783, nevertheless an award of divided custody is not an abuse of discretion where justifying circumstances appear. * * *'

The parties are not in disagreement regarding the basic law applicable to the issue. I.C. § 32-705 provides:

'In an action for divorce the court may, before or after judgment, give such direction for the custody, care and education of the children of the marriage as may seem necessary or proper, and may at any time vacate or modify the same.'

The question as to custody of children committed in the first instance to the discretion of the trial court and unless such discretion is abused the judgment in respect to custody will not be disturbed on appeal. Roosma v. Moots, 62 Idaho 450, 112 P.2d 1000; Olson v. Olson, 47 Idaho 374, 276 P. 34; Hendricks v. Hendricks, 69 Idaho 341, 206 P.2d 523, 9 A.L.R.2d 617; Jeppson v. Jeppson, 75 Idaho 219, 270 P.2d 437; Stevens v. Davis, 78 Idaho 331, 303 P.2d 240; Larkin v. Larkin, 85 Idaho 610, 382 P.2d 784.

Appellant suggests that if respondent's circumstances change so as to permit his spending more time with the children, the decree could be modified either by agreement of the parties or by a proper showing to the court. Under the circumstances disclosed by this record we do not feel justified in disturbing the custody provision of the decree at this time. It is our view that if respondent elects to have the children with him as permitted under the provisions being considered, and as a result of such change of custody the welfare or best interests of the children become adversely affected, then appropriate modification may be justified.

The allowance of $100 per month as maintenance for each child is complained of as being unreasonably small and inadequate in amount. The argument given in support of this contention deals principally with appellant's concept of respondent's financial ability to pay more. Our attention is not called to any item of necessity which is not being or cannot be provided for the children under such allowance. In this connection significantly the parties stipulated that during the pendency of this action respondent should pay $100 per month for the support of each child.

While considering the amount referred to we are mindful that in fixing such allowance regard should be given to the social position of the persons involved and award sufficient to permit a standard of living commensurate with that to which they were accustomed. This court has repeatedly held that in fixing the amounts for child support, the necessities of the children and the financial ability of the payor to provide are primary considerations. Embree v. Embree, 85 Idaho 443, 380 P.2d 216; Hampshire v. Hampshire, 70 Idaho 522, 223 P.2d 950, 21 A.L.R.2d, 1159; Humbird v. Humbird, 42 Idaho 29, 243 P. 827.

Appellant apparently has no doubt regarding the future earnings of respondent. However such confidence was not shared in by the trial court. In this connection the court found

'That defendant's future earnings are uncertain; that the effect of the divorce on his professional standing as a physician and surgeon remains to be seen; that it is imperative that his earning capacity be not impaired by extravagance on the part of either party, and the duty of supporting and educating his children is his primary duty.'

We do not agree with the contention that unless this court on this appeal orders a modification of child maintenance, appellant will be faced with an impossible situation. Under I.C. § 32-705 the trial court retains jurisdiction to modify maintenance awards if such is warranted by the facts. If in the future it can be shown that the allowance specified is not adequate to provide maintenance such as the children are entitled to, and respondent's income justifies an allowance increase, there should be no question as to the court's authority to grant appropriate relief. However, in view of all the circumstances, including the trial court's uncertainty as to the future earnings of respondent, we shall not now disturb the child maintenance allowance as fixed by the trial court.

Appellant contends that the trial court abused its discretion in failing to apportion substantially more than one-half of the value of the community property to appellant. In support of this contention appellant refers to the fact that the divorce was granted upon the ground of extreme cruelty and that appellant was the non-offending spouse, which, appellant contends, justifies that a substantially greater portion of the community property should be awarded to her. The applicable statute is ...