Rufer v. Rufer, 6446.

• Court: North Dakota Supreme Court
• Writing for the Court: NUESSLE
• Citation: Rufer v. Rufer, 67 N.D. 67, 269 N.W. 741 (N.D. 1931)
• Decision Date: 13 November 1931
• Docket Number: No. 6446.,6446.
• Parties: RUFER v. RUFER.

67 N.D. 67

269 N.W. 741

RUFER

v.RUFER.

No. 6446.

Supreme Court of North Dakota.

Nov. 13, 1931.

Syllabus by the Court.

1. Where a judgment of divorce is ordered, the welfare of the children of the parties is the determining consideration of the court in giving direction for their custody.

2. On an appeal from an order denying an application of the plaintiff for a modification of a prior order awarding her the custody of the child of the marriage but forbidding her to remove said child from the state without application to and authority from the court, the record is examined, and it is held, that it is such as to sustain and warrant the order denying the application.

Appeal from District Court, Cass County; M. J. Englert, Judge.

Suit by Josephine Rufer against Cyrus Rufer. From an order denying plaintiff's application to modify a prior order forbidding her to remove from the state the child of her marriage with defendant awarded to her custody, plaintiff appeals.

Affirmed.

Hanley & Hanley, of Mandan, for appellant.

Fuller & Powers, of Fargo, for respondent.

NUESSLE, Judge.

This is an appeal from an order of the district court of Cass county denying plaintiff's application to modify a prior order fixing the custody of the minor child of the plaintiff and defendant.

Plaintiff and defendant were married in August, 1926. On September 1, 1927, a daughter was born to this marriage. In May, 1928, plaintiff sued for and procured a divorce from the defendant. A property settlement was made by the parties. The child of the marriage was by the judgment awarded to the plaintiff for the first six months after the filing of the judgment of divorce and thereafter to the defendant and plaintiff for six-month periods alternately until the further order of the court. Plaintiff took the child pursuant to the terms of this judgment. She then had little means, and the defendant contributed to the support of the child then and thereafter. In due course, pursuant to the judgment, she turned the child over to the defendant. From that time on the defendant had the child in his custody the greater part of the time until 1933. During this period plaintiff, who had remarried, was in South America for about a year and two months with her husband, who was a mining engineer. In December, 1933, on the application of the plaintiff, the court entered a further order awarding the plaintiff the permanent custody of the child after July 1, 1934, with the right of visitation on the part of the defendant, and with the further provision that the defendant should have the custody of the child during the vacation periods and at other times. The order also provided that the plaintiff should not permanently remove the child from the state without application to and authority from the court.

On July 1, 1934, pursuant to the order made in December, 1933, the plaintiff was given the custody of the child, who continued to live with her, except for vacation visits with her father, until the close of the school year in the spring of 1936. Then, pursuant to the order, she again went to live with her father for the summer vacation months. In June, 1936, plaintiff's husband was offered a lucrative position as a geologist with an eastern oil and gas development company. He decided to accept this offer, but in order to do so it was necessary for him to remove from the state of North Dakota and take up his residence in West Virginia. Plaintiff was desirous of accompanying her husband, so she sought to procure the child from the defendant who refused to give her up. Plaintiff again applied to the court for an order modifying the order theretofore entered in December, 1933, so as to permit her to have the immediate custody of the child and remove with her from the state of North Dakota. Defendant resisted this application. A showing by affidavits and by oral testimony was made in behalf of both parties. The court examined the child who was then nine years old and, after considering the whole showing, denied the application on September 4, 1936.

[1] Section 4404, Comp.Laws 1913, provides that: “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.” This court has heretofore held that in deciding where the custody of children in such cases shall be fixed, the determining consideration is the welfare of the child. Horner v. Horner (N.D.) 268 N.W. 428;King v. King, 61 N.D. 422, 237 N.W. 854;Garrett v. Burbage, 55 N.D. 926, 215 N.W. 479;Schlak v. Schlak, 51 N.D. 897, 201 N.W. 832;Mickles v. Fennell, 15 N.D. 188, 107 N.W. 53. And...