Peterson v. Peterson, 8285
| Citation | 77 Idaho 89,288 P.2d 645 |
| Decision Date | 04 October 1955 |
| Docket Number | No. 8285,8285 |
| Parties | Dallas PETERSON, Plaintiff-Appellant, v. Austine PETERSON, Defendant-Respondent. |
| Court | Idaho Supreme Court |
Merrill & Merrill, Pocatello, Cox, Ware & Stellmon, Lewiston, for appellant.
Robert M. Kerr, Jr., Blackfoot, for respondent.
The parties to this proceeding were married September 16, 1938. Two children, a boy named Chris, now of the age of eleven years, and a girl, Peggy Anne, now of the age of eight years, were born the issue of the marriage. The parties thereafter separated and plaintiff, appellant here, on July 18, 1950 was granted a divorce by default on the ground of extreme cruelty. By the terms of the decree the children were awarded to his custody, subject to the right of defendant, respondent here, to see and visit the children at reasonable times and places.
The parties will be hereinafter referred to as they appear in the proceedings in the district court.
Defendant, on September 30, 1950, married Don Prophet. Plaintiff remarried August 21, 1951, and his present home is Clarkston, Washington. Subsequent to plaintiff's marriage the children have lived in the home of plaintiff and his present wife, and have been cared for by them.
The actions of defendant which were alleged to have caused plaintiff grievous mental suffering are in part as follows:
'that defendant has, on numerous occasions, been absent from their mutual home at unreasonable hours and times and while so doing has consorted with other men; that by reason of defendant's association with divers male companions and by reason of the late and unreasonable hours and continual absence from their mutual home, defendand has neglected the children of said marriage, has neglected their mutual home, and is therefore unable and refuses to carry out in proper manner her marital duties and responsibilities; * * *'
The findings are general. In the decree the court found that from the evidence it satisfactorily appears that all the material allegations of plaintiff's complaint are proved by competent evidence, free from exceptions or objection.
On May 6, 1952 defendant filed a petition alleging a change in conditions and praying for vacation and modification of the decree relative to the custody of the children; claimed that their custody was obtained by plaintiff by deceit and that certain promises made by him to her prior to the granting of the decree had not been kept. Further that plaintiff had not permitted her to visit the children at reasonable times and places as permitted by the decree; that the children had been taken beyond the jurisdiction of the court, and asked that the decree be modified and the children's custody awarded to her.
In response to a show cause order plaintiff appeared, specifically denied the material allegations of defendant's petition, and in an affirmative defense alleged that there was no sufficient change in conditions, if any, to warrant a modification, and that the best interests and welfare of the children would be promoted and protected by leaving their custody as originally decreed. Trial was had and thereafter, on November 9, 1954, the court made an order modifying the decree, by the terms of which order the custody was divided, and plaintiff was given the care and custody of the children at all times from September 1 to May 31 of each year, and defendant the custody during the months of June, July and August of each year. From this order modifying the original decree plaintiff appealed.
In assignments of error plaintiff challenges numerous findings of fact as not supported by the evidence or in conflict therewith; complains of the admission of certain evidence and the rejection of other evidence; challenges the conclusion made by the trial judge that a divided custody is for the best interest and welfare of the children. We shall not discuss such assignments separately, but shall group for discussion those pertinent to a decision.
Nor shall we review the evidence in detail. To do so would serve no useful purpose. The transcript of evidence, consisting of 536 pages, has been carefully read and examined, and all contentions made have been considered and are fully understood.
It sufficiently appears that prior to the divorce, defendant, without any sufficient cause or reason, neglected her home, husband and children; that for a long period of time prior to the divorce, she had no love for her husband and subjected him to the grossest indignities that no man or person could be expected to condone or placidly endure. The court found that such actions so proved were indiscretions.
We think the record conclusively establishes that her actions involved much more. Among other things, while married to plaintiff, she told him she wanted to marry another man, naming him, and that she had been stepping out with male companions. She attempted in this proceeding to explain this statement and testified that it was made for the purpose of inducing him to get a divorce. We think the truth of such statements made by her has, in this proceeding, been proved; that she had stepped out, as she phrased it; that her conduct, so admitted by her, is a fact and such fact was well known in the community in which the parties lived and resulted in much gossip in the neighborhood among their friends and acquaintances.
It is contended by defendant that plaintiff did not permit her to see the children at reasonable times and places as authorized by the decree; that the distance between the homes of the parties made visitation impracticable; that the children need the affection of a mother; that she, if reformation was necessary, has reformed; that she had remarried, has a good home, and now desires custody of the children, and because of such facts there has been a change in conditions sufficient to authorize a modification of the original decree.
For approximately two years or more prior to the time the divorce was granted defendant had importuned and suggested to plaintiff that he secure a divorce; that she was willing that he have the custody of the children, and by inference and otherwise indicated she did not want them.
The defendant testified that the misunderstandings and conditions which ultimately resulted in a divorce were the fault of plaintiff. Such alleged misconduct of plaintiff so asserted by her and about which she now complains is of the...
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...of circumstances, even though it is not controlling in itself. Riener v. Riener, 93 Idaho 900, 477 P.2d 841 (1970); Peterson v. Peterson, 77 Idaho 89, 288 P.2d 645 (1955); 27B C.J.S. Divorce § 317(2)f (1959). A court similarly may consider a party's deliberate defiance of a court decree. Ri......
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...the exercise of the court's "jurisdiction" to fix such periods and define reasonable visitation. A year earlier in Peterson v. Peterson, 77 Idaho 89, 288 P.2d 645 (1955), the Court had had occasion to pass on the same question. There the father obtained the divorce and custody of the childr......
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