Simmons v. Simmons

• Decision Date: 01 April 1978
• Docket Number: No. 48457,48457
• Citation: 223 Kan. 639,576 P.2d 589
• Parties: Kathleen V. SIMMONS, Appellant, v. James J. SIMMONS, Appellee.
• Court: Kansas Supreme Court

Page 589

576 P.2d 589

223 Kan. 639

Kathleen V. SIMMONS, Appellant, v. James J. SIMMONS, Appellee.

No. 48457.

Supreme Court of Kansas.

April 1, 1978.

Syllabus by the Court

In a change of custody action wherein the trial court awarded change of custody of minor children to the husband, the record is examined, and for the reasons set forth in the opinion, it is held : (a) the trial court did not err in finding that the husband had sustained the burden of proving that a change in custody was necessary for the best interests of the children; and (b) the trial court did not abuse the exercise of its power of discretion.

John T. Conlee of Fleeson, Gooing, Coulson & Kitch, Wichita, argued the cause, and Richard I. Stephenson, Wichita, was with him on the brief for appellant.

Thomas C. Triplett of Martin, Pringle, Schell & Fair, Wichita, argued the cause, and Martin W. Bauer, Wichita, was with him on the brief for appellee.

SCHROEDER, Chief Justice:

This is an appeal by Kathleen V. Simmons (defendant-appellant), from the trial court's order changing custody of the parties' two minor children to James J. Simmons (plaintiff-appellee). The appellant contends the appellee failed to sustain the burden of proving a change in custody was necessary for the best interests of the children, and the trial court abused the exercise of its sound judicial discretion in ordering the change of custody.

On April 9, 1975, Kathleen V. Simmons (hereafter Vici) was granted a divorce from her husband James J. Simmons (hereafter Jim). Vici was awarded custody of the couple's two adopted children, Matthew who was then four years of age and Tracy who was then one year old.

Jim is the president and principal stockholder in the National Oil Company, an independent oil and gas producer in Wichita, Kansas. He is a millionaire by his own admission. In addition to their house and a cash settlement of $26,250, Vici was awarded alimony in the amount of $1,500 per month for a period of three years unless she died or remarried. If she remarried or at the end of three years, whichever occurred first, her alimony decreased to $1,000 per month to continue for six years. She was also awarded $200 per month in child support for each child. Jim retained all the company stock.

Shortly after her divorce Vici began negotiations to purchase two Merle Norman Cosmetic Studios in Denton, Texas. She testified she wanted to secure an economically sound future for herself and for her children. Vici went to a training seminar for these businesses for three weeks in August and September of 1975. During this time she asked Jim to take care of both children. Jim kept Matthew; however, Tracy stayed with Vici's parents. Jim made trips to Dallas and Houston during this three-week period and left Matthew with a girl friend and another friend in Kentucky. As a result of this visit on September 15, 1975, Jim filed a motion for change of custody in order to obtain Matthew. He subsequently withdrew this motion.

Vici moved with the children to Denton, Texas, in October of 1975, where she purchased a three-bedroom home with a detached garage converted into an apartment. She testified she wanted to employ a live-in housekeeper/baby-sitter in order to insure that her children would be properly cared for while she was at work.

Unfortunately Vici had less than a perfect record with housekeepers. From October until mid-July, when this change of custody suit was heard, Vici hired five housekeepers. The first two ladies each remained for less than two weeks and left before Vici started to work full-time. In January of 1976 Merle Root was hired. She remained until Jim's motion to change custody was filed on March 10, 1976. After Mrs. Root left and before Dorothy Hunter the last housekeeper, one employee left due to the emotional strain of the custody proceedings.

During this time Vici was also seeing Danny Blake. She met Danny when he was the assistant golf professional at the Rolling Hills Country Club in Wichita. The two became engaged after her divorce. Danny also moved to Denton, Texas, and began selling insurance. While he had his own apartment in Denton, he spent considerable time at Vici's and stayed overnight on numerous occasions. Apparently Vici's children were unaware of her sexual activities. Both Vici and Danny testified he stopped staying at Vici's house in March when it was suggested their relationship might jeopardize Vici's custody battle.

Jim Simmons visited his children on three separate occasions after their move to Denton, Texas. On two of these trips he took his 24-year-old girl friend, Linda Vincent. Jim and Linda were living together in Wichita. On these visits Jim and Linda shared a single hotel room overnight with the children. The two adamantly deny sleeping together in front of the children. Linda testified during these visits Tracy appeared to be unclean and Matt was starved for affection and attention.

Jim filed this change of custody suit on March 10, 1976. On March 15, 1976, he and Linda Vincent were married.

The voluminous record in this case reveals considerable testimony of the parties and their respective friends and neighbors. Some of the testimony was conflicting. In granting Jim's motion for change of custody the trial court made the following findings:

"1. Plaintiff's business obligations give her little time with the children.

"2. Images of authority are necessarily confused in this complicated arena which can only be detrimental to the children. Who holds the parental image various housekeepers mother fiance?

"3. Dan Blake did administer excessive corporal punishment to the minor daughter.

"4. The plaintiff and her fiance are trying to act out the role of mother and father without the benefit of marriage.

"5. The competency of all housekeepers hired by the plaintiff has to be considered below normal and the frequency of change has to be considered detrimental to the children.

"6. For all practical purposes Dan Blake is residing at the plaintiff's place of residence at least five days a week or more.

"7. There have been five different housekeepers in eight months taking care of the children.

"8. The present housekeeper is not keeping proper care of the personal needs of the minor daughter as evidenced by failure to change underclothing and chafing of vital areas.

"9. The deposition of Dan Blake must be considered a noncooperative one and for an individual who has taken over fatherly obligations it indicates a lack of cooperation to get at all of the truth in this matter.

"10. The plaintiff does not intend to let her children interfere with either her business or her private life.

"11. The defendant has remarried and established a household.

"12. The defendant has arranged his business affairs so he can spend a normal working father's time with the children and his present wife is not employed and would be at home to care for the children.

"13. The need of the children to identify themselves into a stable family situation is unquestionable and the defendant is in the best position to offer this stability.

"14. Parental authority in the home of the defendant would be more defined than it is in the home of the plaintiff. The present wife of the defendant is ready, willing and able to care for the minor children.

"15. The best interests of the children would be served if custody were changed, and it is hereby the order of the Court that the custody of the minor children be placed in the defendant, James J. Simmons. Mr. Simmons may proceed to Denton, Texas, and pick the children up on July 17th, 1976, at 10:00 a. m."

The appellant first contends the evidence was insufficient to sustain the appellee's burden of proving a change in custody was necessary for the best interests of the children.

The paramount question for determination of custody as between the parents is what best serves the interests and welfare of the children. All other issues are subordinate thereto. The court must determine which parent will do a better job of rearing the children and provide a better home environment. (Parish v. Parish, 220 Kan. 131, 551 P.2d 792 and cases cited therein.) The trial court may look at the availability and willingness of each parent to care for the children. (Lewis v. Lewis, 217 Kan. 366, 537 P.2d 204.)

In order to insure that the...