Stevens v. Stevens
| Decision Date | 03 June 1958 |
| Citation | 151 N.E.2d 166,337 Mass. 625 |
| Parties | Leonora STEVENS (now Sullivan) v. Roland G. STEVENS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Joseph P. Graham, Boston (Augustine B. Turnbull, Jr., Boston, with him), for Roland G. Stevens.
Allan Roy Kingston, Somerville, for Leonora Stevens Sullivan.
Before WILKINS, C. J., and RONAN, WILLIAMS, COUNIHAN and WHITTEMORE, JJ.
There is no basis for reversing the decree of the Probate Court for Suffolk County here presented for review on the evidence and a report of material facts. The decree, dated August 15, 1957, modified prior decrees for custody of two minor children of the divorced parents and for the first time awarded the custody of the daughter, aged eleven, to the child's mother, the libellant, and ordered the libellee to pay $15 a week toward the support of the daughter. See G.L. c. 208, § 28. The minor son, at all times after the divorce in 1948, had been in the mother's custody.
At an earlier stage in these proceedings we held (Stevens v. Gross, 331 Mass. 760, 117 N.E.2d 159) that no error was shown in a decree dated June 16, 1953, refusing to take the custody of the daughter from the father and award it to the mother. At that time the child was living in a home in Marlborough, Massachusetts, in the charge of a registered nurse, a daughter of the household. The judge then found that the child was housed in healthful and pleasant surroundings, and that the libellant had remarried and was in the process of buying a home in the Roslindale section of Boston.
The evidence and findings before us on the renewed petition for custody show facts as stated in this and following paragraphs. In 1956 the libellee had returned from his military service in Germany, and taken the child to Colorado, without the knowledge of the mother or the court. The mother at that time had the right by court order to take her daughter on Sundays for seven-hour periods and for two weeks in August of each year. The child was living in Colorado in an apartment in quarters supplied by the military authorities to personnel having dependents. The registered nurse had left Marlborough, gone to Colorado, taken up her abode in the apartment, found a job, and was taking care of the child except when the child was in school or on Saturdays. On Saturdays the child was in the father's care and sometimes went with him to his work as 'sales superintendent.' The child was doing well in school, and was healthy. The father's sojourn in Colorado was expected to end in February, 1958, and he planned to return to Massachusetts.
In 1957 the mother and her present husband, whom she had married in 1952, were living in their home in Roslindale. The other members of the family were the fifteen year old son of the libellant and the libellee, and the fourteen year old son of the libellant's present husband. There was evidence that the daughter's visits to that home had been happy and that she got along well with the two boys. The judge could have found that, when the libellee took his daughter to Colorado, 'she didn't want to leave, but she wanted to go with me more.'
Manifestly there was a relevant change of circumstances (Hinds v. Hinds, 329 Mass. 190, 191, 107 N.E.2d 319) adequate to support a change in the order for custody. There was strong assurance of the mother's ability of offer a good home and the daughter was no longer in a settled home.
The report of material facts places some stress on the father's intent and conduct in removing the child from Massachusetts, and the contradiction in his testimony as to whether he was in fact then married to a woman whom the judge found to be his present wife. It is well settled that the welfare of the child is the controlling consideration and custody is not to be awarded or changed to discipline either party. Hersey v. Hersey, ...
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