Richardson v. Richardson

• Decision Date: 13 October 1951
• Docket Number: No. 7782,7782
• Citation: 236 P.2d 718,72 Idaho 19
• Parties: RICHARDSON v. RICHARDSON.
• Court: Idaho Supreme Court

Page 718

236 P.2d 718

72 Idaho 19

RICHARDSON v. RICHARDSON.

No. 7782.

Supreme Court of Idaho.

Oct. 13, 1951.

Carl C. Christensen, Pocatello, for appellant.

Bistline & Bistline, Pocatello, for respondent.

KEETON, Justice.

The facts in this case are not materially in conflict and may be briefly summarized as follows: The parties were married February 14, 1948; thereafter, in an uncontested proceedings, a decree of divorce was granted respondent (plaintiff) on December 10, 1949. A child, Katherine Mae, born the issue of the marriage in March, 1949, was by the terms of the decree awarded to respondent.

By a petition filed February 16, 1951, the defendant (appellant here) sought, because of changed circumstances and conditions to modify the decree and have custody of the child awarded to her.

At the time of the divorce, the appellant, then eighteen years of age, had no employment, income or means, or facilities for caring for the child, and no home for her, and did not contest the awarding of the child to the father. On January 15, 1950, she married Thomas William Jenkins, and has been living with said husband from that time to the present.

In December, 1950, respondent was inducted into the United States army, and the child was left in the care of respondent's father and mother.

The husband of the appellant is steadily employed, and earns in excess of $200 per month, after taxes and other deductions. Appellant and her husband have a modern home at Inkom, Idaho. There is nothing in the record to show that the mother is not a competent, fit and proper person to have the custody of the child, and the court in its decision modifying the original decree hereinafter referred to, did not find, and the record does not disclose, any legal reason which should bar the mother's custody. Her character was not attacked in any way. She was apparently living a normal and respectable life. There was no evidence tending to prove that her home was not a fit and proper place for the raising and care of children, or that the said child would not be carefully reared and well provided for if awarded to her.

The husband of the appellant testified that he and the appellant were living harmoniously together, and 'getting along fine'; that he was desirous and willing to help with the care of the child in controversy, the same as if it were his own child. There is nothing to show that the appellant's husband is not industrious, frugal and of good moral character, and no testimony in anywise attacking the character of appellant or her present husband was offered.

At the time of the hearing for modification, appellant was nineteen years of age, respondent twenty-two years.

The trial court modified the original decree and by an order dated March 27, 1951, awarded the custody, care and control of the minor to the respondent (father) subject to the right of the appellant to have the care, control and custody of said child one calendar week each month and on Saturday and Sunday each week, the appellant to return the child to the home of its grandparents on Sunday evenings. From this order appellant appealed.

Laws and rules with respect to the custody of minor children of divorced or separated parties have been the subject of many and frequent decisions. The questions presented for decision are not new in Idaho, and an extensive review of cases from this or other jurisdictions would unnecessarily prolong this opinion.

In determining the custody of a minor child, the child's welfare and best interests are the primary, paramount and controlling considerations by which the courts should be guided. Krieger v. Krieger, 59 Idaho 301, 81 P.2d 1081; Roosma v. Moots, 62 Idaho 450, 112 P.2d 1000; Maudlin v. Maudlin, 68 Idaho 64, 65, 188 P.2d 323; Wilkinson v. Wilkinson, Cal.App., 233 P.2d 639; Cooper v. Cooper, Wash., 234 P.2d 492.

A young child, particularly a girl, needs the sympathy, affection, consideration and the tender care which only a mother can give, and courts will not deprive mother of custody of her child unless it is shown clearly that she is so unfit a person as to endanger child's welfare. Kirkpatrick v. Kirkpatrick, 52 Ida. 27, 10 P.2d 1057; Ruthruff v. Ruthruff, 52 Idaho 330, 14 P.2d 958; Cornelison v. Cornelison, 53 Idaho 266, 23 P.2d 252; Krieger v. Krieger, supra; Brashear v. Brashear, Idaho, 228 P.2d 243; In re Casad's Guardianship, Cal.App., 234 P.2d 647.

From the time the child was awarded to the respondent, she was cared for by the grandparents, and at the time of respondent's induction, he was living with them.

While divided custody of a child or children has been in numerous decisions approved, the conditions permitting such divided custody rested on the peculiar circumstances surrounding the situation, and courts should avoid, when possible, a division of the control of a child between the parents, because it is hardly possible for a child to grow up and live a normal, happy life under such circumstances. Larson v. Larson, 176 Minn. 490, 223 N.W. 789; Campbell v. Campbell, 96 N.J.Eq. 398, 130 A. 361; Brock v. Brock, 123 Wash. 450, 212 P. 550; Towles v. Towles, 176 Ky. 225, 195 S.W. 437; McCann v. McCann, 167 Md. 167, 173 A. 7; Martin v. Martin, Tex.Civ.App. 132 S.W.2d 426; Grow v. Grow, 270 Ky. 571, 110 S.W.2d 275; 27 C.J.S., Divorce, § 308, p. 1169.

The mother has a suitable place and surroundings in which to care for the child. The father on the other hand, at the present time cannot, because of the circumstances which exist, personally care for the daughter.

Both parties are shown by the record to be fit and proper persons to have the custody of the child, but material advantages presented are with the mother, and the custody of the child shared by the mother, the father, and the grandparents is not conducive to the best interest and welfare of the minor.

The continual turmoil of shifting the child from...