Piatt v. Piatt

• Decision Date: 30 September 1919
• Citation: Piatt v. Piatt, 32 Idaho 407, 184 P. 470 (Idaho 1919)
• Parties: FLORENCE PIATT, Respondent, v. EDWARD I. PIATT, Appellant
• Court: Idaho Supreme Court

184 P. 470

32 Idaho 407

FLORENCE PIATT, Respondent, v. EDWARD I. PIATT, Appellant

Supreme Court of Idaho

September 30, 1919

DIVORCE-EVIDENCE-CORROBORATION-CUSTODY AND SUPPORT OF CHILDREN.

1. Where a divorce is sought on the ground of extreme cruelty causing grievous mental suffering, the evidence must be sufficient to satisfy the trial court that the party at fault has been guilty of acts of cruelty which have caused grievous mental suffering to the complaining party. The finding will not be disturbed unless the evidence in support thereof is so slight as to indicate a want of good judgment and an abuse of discretion by the trial court.

2. A confession or admission by the defendant in a divorce case though admissible, is not corroborating evidence of the testimony of the plaintiff, but where from the whole record it is apparent that there is no collusion between the parties, slight evidence in corroboration of the plaintiff aside from the admissions of the defendant, is all that is required.

3. In a divorce action the custody of the minor children of the marriage should be awarded to one of the parents, unless the court finds that both parents are either unfit or unable to properly care for the children.

4. In a divorce action, where there are minor children, and the parents are unfit or unable to properly care for them, the court must receive evidence as to the qualifications of a third person to whom it is proposed to award the custody of the children.

5. In a divorce action, the court has no power to require payment of funds for the support and maintenance of children of the marriage after they attain their majority.

[As to habits or course of conduct of spouse as cruelty warranting divorce, see note in Ann.Cas. 1918B, 480]

APPEAL from the District Court of the Second Judicial District, for Clearwater County. Hon. Edgar C. Steele, Judge.

Action for divorce. Judgment for plaintiff. Modified.

Judgment affirmed in part. Reversed in part and remanded with directions. Costs awarded to respondent.

Clay McNamee, for Appellant.

"In order to make cruelty a ground for divorce, it must be such conduct toward the plaintiff by the defendant as will cause him or her injury by actual personal violence, or the reasonable apprehension of it, or such course of treatment as endangers his or her life or health, and renders cohabitation unsafe." (Keezer on Marriage and Divorce, sec. 104, p. 58, and authorities cited in footnote; De Cloedt v. De Cloedt, 24 Idaho 277, 133 P. 664; Barker v. Barker, 25 Okla. 48, 105 P. 347, 26 L. R. A., N. S., 909.)

"Unless it is clearly shown that both the parties are unqualified, the court is not justified in awarding the custody of the children to a third person." (14 Cyc. 806; Farrar v. Farrar, 75 Iowa. 125, 39 N.W. 226; Hopkins v. Hopkins, 39 Wis. 167; Lambert v. Lambert, 16 Ore. 485, 19 P. 459.)

"Where defendant is not apprised that an order would be asked for committing the custody of his son to the child's grandfather, who was not a party to the proceedings, such an order is unauthorized." (Wood v. Wood, 61 A.D. 96, 70 N.Y.S. 72.)

"The award of the custody of children upon or after divorce is within the discretion of the court, to be exercised with due regard to the welfare of the children and the rights of the parties." (14 Cyc. 808; Dickerson v. Dickerson, 108 Cal. 351, 41 P. 475; Luthe v. Luthe, 12 Colo. 421, 21 P. 467; Leach v. Leach, 46 Kan. 724, 27 P. 131; Bird v. Bird, 28 Ore. 582, 42 P. 616; Donaldson v. Donaldson, 31 Idaho 180, 170 P. 94.)

S. O. Tannahill, for Respondent.

The supreme court will not disturb a finding of the trial court that particular acts constitute grievous mental suffering, unless the evidence in support of such finding is so slight as to indicate a want of ordinary good judgment and an abuse of discretion on the part of the trial court. (Little v. Little, 29 Idaho 292, 158 P. 559; Donaldson v. Donaldson, 31 Idaho 180, 170 P. 94; Hufton v. Hufton, 25 Idaho 96, 136 P. 605; Blair v. Blair, 122 Cal. 57, 54 P. 369; Andrews v. Andrews, 120 Cal. 184, 52 P. 298; Fleming v. Fleming, 95 Cal. 430, 29 Am. St. 124, 30 P. 566.)

"The question as to the disposition of children and allowance of alimony in divorce actions is in the first instance committed to the discretion of the trial court." (Donaldson v. Donaldson, supra.)

RICE, J. Budge, J., concurs. MORGAN, C. J., Dissenting.

OPINION

RICE, J.

In this case respondent was granted a divorce from appellant upon the ground of extreme cruelty, and as incidental relief was awarded the sum of $ 1,500, to be paid by appellant in full settlement of the property rights. The decree also required appellant to pay the sum of $ 30 per month for the support, care and maintenance of the two minor female children, issue of the marriage, payment of such sums to begin Oct. 1, 1918, and continue until each of said children shall arrive at the age of twenty-one years, or until the further order of the court. The care, custody and control of the children, age nine and seven years, respectively, was awarded to R. L. Blevins, their grandfather, father of respondent. The decree also contained certain directions which were to control the grandfather in the matter of the education of the children, and in exercising his right to their custody.

Appellant attacks certain findings and conclusions of the court on the ground that there was not sufficient evidence in the case to warrant the court in finding that respondent had suffered cruel or inhuman treatment from appellant. Respondent alleged in her complaint that the acts of cruelty complained of caused her to experience grievous mental suffering.

This assignment of error must be considered with reference to the following sections of our statute:

C. L., sec. 2649: "Extreme cruelty is the infliction of grievous bodily injury, or grievous mental suffering upon the other by one party to the marriage."

C. L., sec. 2661: "No divorce can be granted upon the default of the defendant, or upon the uncorroborated statement, admission or testimony of the parties. . . . "

It is not necessary to summarize the testimony as it appears in the record. Suffice it to say that much of the testimony of respondent herself as to the specific acts of cruelty complained of is indirect. This is true also with reference to the effect of the acts complained of, that is, as to whether they caused her to experience grievous mental suffering. As to whether or not the conduct of appellant caused respondent grievous mental suffering must for the most part, on the record in this case, be inferred from the evidence.

There is but slight corroboration of respondent's testimony, either as to any specific acts of alleged cruelty, or as to their effect upon respondent. There was testimony as to certain admissions made by appellant to the effect that he had accused respondent of infidelity to him. The proof, however, of the admission of appellant is not corroboration within the meaning of the statute. Under the terms of the statute, a defendant's admission in court is not of itself corroborating testimony, and proof of his admission out of court is entitled to no greater weight than if the admissions were made directly in the proceedings. The purpose of the statute requiring corroboration is to protect the courts from collusion between the parties. (Andrews v. Andrews, 120 Cal. 184, 52 P. 298; Blanchard v. Blanchard, 10 Cal.App. 203, 101 P. 536; MacDonald v. MacDonald, 155 Cal. 665, 102 P. 927, 25 L. R. A., N. S., 45; Tuttle v. Tuttle, 21 N.D. 503, Ann. Cas. 1913B, 1, 131 N.W. 460.) Proof of the admission of defendant is properly received in evidence (Baker v. Baker, 13 Cal. 87), and where from the whole record it is apparent that there is no collusion between the parties, and proof is made of admissions of misconduct on the part of defendant, slight evidence in corroboration of plaintiff, aside from the admissions of defendant, is all that is required. (Tuttle v. Tuttle, supra; MacDonald v. MacDonald, supra.)

I think there is in the record some corroboration within the rule laid down in De Cloedt v. De Cloedt, 24 Idaho 277, 138 P. 664, and Donaldson v. Donaldson, 31 Idaho 180, 170 P. 94, and the cases above cited, and the evidence, though not as convincing as it is in many cases, is sufficient to warrant the trial court, who heard the evidence and observed the demeanor of the parties and the witnesses on the stand, in finding as a fact that appellant was guilty of acts of cruelty which caused respondent grievous mental suffering.

In such cases this court will not disturb the findings where it is not apparent that the evidence in support thereof is so slight as to indicate a want of ordinary good judgment and an abuse of discretion by the trial court. (De Cloedt v. De Cloedt, supra; Donaldson v. Donaldson, supra; MacDonald v. MacDonald, supra.)

Appellant assigns as error that portion of the decree awarding the custody of the children to R. L. Blevins, their grandfather.

C. L., sec. 2663, reads as follows:

"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."

While this statute is very broad in its terms, we think the discretion thereby conferred upon the trial court must be exercised with due regard, both to the well-being of the children of the marriage and the rights of the parents. The right of a parent to the care, custody and control of his child is a natural right, and is recognized by our statutes. C. L., sec. 2699a, being one of the sections of the statute contained in the chapter entitled "Parent and...