Oursland v. Oursland, 10436
| Decision Date | 25 June 1968 |
| Docket Number | No. 10436,10436 |
| Citation | 159 N.W.2d 922,83 S.D. 382 |
| Parties | Dan A. OURSLAND, Plaintiff and Appellant, v. Kathryn OURSLAND, Defendant and Respondent. |
| Court | South Dakota Supreme Court |
Robert L. Jones, Philip T. Roche, Gene E. Pruitt, Sioux Falls, for plaintiff and appellant.
Braithwaite, Cadwell & Braithwaite, Sioux Falls, for defendant and respondent.
This is an appeal by plaintiff husband in a divorce action from the portion of the judgment awarding the custody of four children of the marriage to the mother.
Plaintiff by his complaint and the defendant by cross complaint sought a divorce on the ground of cruelty. The judgment herein entered on March 17, 1967 dismissed the cross complaint, granted plaintiff a divorce and awarded defendant custody of the children with right of visitation in the plaintiff, who at the time of the entry of judgment were six, four, three and one and one-half years of age.
The sole issue on this appeal is whether the trial court abused its discretion in awarding custody of the children to the mother.
The law a quite clear. It is provided in SDC 14.0505(2) as follows: 'As between parents adversely claiming the custody or guardianship, neither parent is entitled to it as of right, but, other things being equal, if the child be of tender years, it should be given to the mother; if it be of an age to require education and preparation for labor or business, then to the father.' The consideration paramount to all others is the welfare and the best interests of the children. The trial court has a broad discretion in awarding custody and its discretion will not be reversed on appeal unless the record presents a clear case of abuse. If the children are of tender years and the mother has demonstrated her fitness, ability and willingness to perform her maternal duties properly and the children will have equal advantages in her home, the law requires that children of tender years be with her. We need not elaborate upon the reasons that underlie the sound policy of the statute quoted.
In Wiesner v. Wiesner, 80 S.D. 114, 119 N.W. 920, the husband was awarded a decree of divorce on his cross complaint and the custody of three children who were of tender years. This court affirmed the trial court as to the award of a divorce, but holding that the trial court abused its discretion in awarding the father custody of the children reversed the judgment in part and remanded the cause with direction to award custody to the...
To continue reading
Request your trial
-
Spaulding v. Spaulding
...810 (1978); Pochop v. Pochop, 89 S.D. 466, 233 N.W.2d 806 (1975); Masek v. Masek, 89 S.D. 62, 228 N.W.2d 334 (1975); Oursland v. Oursland, 83 S.D. 382, 159 N.W.2d 922 (1968); Wiesner v. Wiesner, 80 S.D. 114, 119 N.W.2d 920 (1963); And Howells v. Howells, 79 S.D. 480, 113 N.W.2d 533 SDCL 30-......
-
Application of G. K., 11873
...of abuse. 4 Masek v. Masek, 1975, S.D., 228 N.W.2d 334; Anderson v. Anderson, 1972, 86 S.D. 757, 201 N.W.2d 394; Oursland v. Oursland, 1968, 83 S.D. 382, 159 N.W.2d 922. We find no abuse of discretion in this In an action pursuant to a writ of habeas corpus to determine the custody of a chi......
-
Jasper v. Jasper
...that the welfare and best interests of the children are paramount to all other considerations. Holforty, supra; Oursland v. Oursland, 83 S.D. 382, 384, 159 N.W.2d 922 (1968). Given the focus on the children's best interest, circumstances may operate to defeat the custody preference of a par......
-
Pribbenow v. Van Sambeek
...376 N.W.2d 571 (S.D.1985); Hanks v. Hanks, 296 N.W.2d 523 (S.D.1980) aff'd after remand 334 N.W.2d 856 (S.D.1983); Oursland v. Oursland, 83 S.D. 382, 159 N.W.2d 922 (1968); Wiesner v. Wiesner, 80 S.D. 114, 119 N.W.2d 920 (1963); In re Doe, 52 Haw. 448, 478 P.2d 844 (1970); Heyer v. Peterson......