Olson v. Olson

• Court: North Dakota Supreme Court
• Writing for the Court: NUESSLE
• Citation: Olson v. Olson, 77 N.D. 444, 43 N.W.2d 689 (N.D. 1950)
• Decision Date: 27 July 1950
• Docket Number: No. 7189,7189
• Parties: OLSON v. OLSON.

Page 689

43 N.W.2d 689

77 N.D. 444

OLSON v. OLSON.

No. 7189.

Supreme Court of North Dakota.

July 27, 1950.

Rehearing Denied Aug. 17, 1950.

Syllabus by the Court.

1. Where a divorce is granted the court has a continuing jurisdiction to enter such order having to do with the welfare of the minor children of the marriage, including their custody, care, and education as circumstances existing at any time may warrant. Section 14-0522, R.C.1943.

2. Where a party in a divorce action fails and refuses to comply with an order of the court affecting the custody and control of the minor children of the marriage, such party may not invoke the favor of the court to procure an amendment of the order with which he refuses to comply.

3. In a controversy between the divorced parents of minor children as to who shall have their custody and control, the chief concern of the court in determining the same in the exercise of its continuing jurisdiction is the welfare of the children. But any order entered must be reasonable and consistent with the rights of the parents.

Daniel S. Letnes and Philip R. Bangs, Grand Forks, attorneys for plaintiff and respondent.

Day, Lundberg, Stokes, Vaaler & Gillig, Grand Forks, attorneys for defendant and appellant.

NUESSLE, Chief Justice.

The plaintiff, Dolores Estelle Johnson, and the defendant, Clifford Arthur Olson, were formerly husband and wife. Plaintiff sued for and on May 20, 1947, was granted a divorce from the defendant. Thereafter she married Helmer Johnson.

Three children were born of her marriage to the defendant. After the divorce was granted and on October 9, 1947, the custody of the two older children was awarded to the defendant. On December 23, 1947, the court made an order giving the temporary custody of these two children to the plaintiff for the holiday season with the requirement that they be returned to the defendant on January 4, 1948. Plaintiff took the children into the State of Minnesota where she has since resided with them and has continuously refused to return them to the defendant, as required by the order pursuant to which she received the children.

Pursuant to the decree of divorce, certain payments were required to be made by the defendant to the plaintiff. One of these fell due in December, 1947. Defendant refused to make the payment on the ground that the plaintiff having taken the children in accordance with the order of the court, thereafter in violation of the terms of that order refused to return them to the State of North Dakota and give them over to the defendant.

Upon the failure and refusal of the defendant to make the payment required to be made as aforesaid, plaintiff sought to coerce it by contempt proceedings. The court, after hearing had on motion of the plaintiff, adjudged the defendant to be in contempt by reason of his failure and refusal to make the payment and ordered him committed to jail until he should purge the contempt by making the payment. Whereupon defendant perfected an appeal to this court. See Olson v. Olson, N.D., 38 N.W.2d 32. On that appeal we held that the plaintiff, being herself in contempt by reason of her failure and refusal to comply with the order of the court, might not invoke the favor of the court to enforce the payment by a contempt proceeding, and reversed the order of the district court made in that behalf.

Since that time the plaintiff has continued to reside with the children in the State of Minnesota and has at all times failed and refused to return them to the State of North Dakota and to the custody of the defendant, as required by the order heretofore referred to. Notwithstanding this continuous contemptuous default, plaintiff sought an amendment of the order awarding the custody of the children to the defendant. To that end on October 1, 1949, she procured an order directed to the defendant to show cause why the order should not be modified and amended and the exclusive custody and control of the children awarded to her.

On October 14, 1949, the return day, in response to the order to show cause, the defendant and his counsel appeared before the court and made return thereto, setting forth: 'That the plaintiff is now in contempt of the above entitled Court, still continuing to defy the Order of the Court * * * with respect to the custody of the children.' Counsel for the defendant also orally objected to the propriety of the procedure on the ground that the plaintiff, because of her failure and refusal to comply with the terms of the order of December, 1947, was still in contempt on the first day of October, 1949, when she procured the issuance of the order to show cause; that accordingly, consistent with the holding in Olson v. Olson, supra, she was not entitled to and could not properly procure such order.

The court overruled the objection thus interposed stating: 'The last order made by this court * * * provided that Clifford Arthur Olson was given the custody and control of the minor daughters until the further order of this court. * * * Now, I am of the opinion that I have the authority, if the evidence warrants it, to make a further order at this time in regard to the custody of the children.' Plaintiff and her husband were then sworn and testified in support of the application. Their testimony was to the effect that they resided on a farm in the State of Minnesota; they had a comfortable, fairly modern farm home; they had the means to provide and care for and educate the children; and desired to and would do so if the plaintiff were awarded their custody and control. Plaintiff further testified that she repented of her refusal to abide by the previous order of the court and that she would observe any order then or afterward made in the matter. She also testified that the children were there with her and were then in a room adjacent to the courtroom. At the direction of the court the children were brought before the court. They identified themselves and were then returned to the room whence they had come. Prior to that time the defendant had no knowledge that the children were in the state. He had had no opportunity, and none was afforded...