Stirrett v. Stirrett

• Decision Date: 27 July 1926
• Docket Number: 1323
• Citation: 35 Wyo. 206,248 P. 1
• Parties: STIRRETT v. STIRRETT [*]
• Court: Wyoming Supreme Court

248 P. 1

35 Wyo. 206

STIRRETT v. STIRRETT ^[*]

No. 1323

Supreme Court of Wyoming

July 27, 1926

ERROR to District Court, Natrona County; BRYANT S. CROMER, Judge.

Action by A. E. Stirrett against Edith M. Stirrett for a decree of divorce. The court overruled plaintiff's motion for a new trial after judgment and decree on petition by plaintiff for modification of previous judgment and decree relative to custody of minor children, and plaintiff brings error. See page 1. this volume and 248 P. 1.

Affirmed.

Hagens and Murane, for plaintiff in error.

The best interest of the child is the controlling consideration in the determination of the question of its custody; Linch v. Harden, 26 Wyo. 51; Jones v Bowman, 31 Wyo. 79; Harris v. Muir, 24 Wyo 213; State v. Court, 195 P. 549. Failure of the lower court to restrain defendant from removing the children from the State, deprives the court of authority to enforce its own decree with reference to the custody of the children; Kline v. Kline, (Ia.) 42 Am. Rep. 49; Seeley v Seeley, 12 Ann. Cases 1058. It is for the best interest of the children that they have but one home and one custodian; Dummitt v. Dummitt, (Mo.) 150 S.W. 1108; Towles v. Towles, (Ky.) 195 S.W. 437. The silence of the record, as to what defendant has done for the children, is self-evident of her lack of devotion and appreciation of her duties as such mother; the decree denying injunction should be reversed. Findings of the court below cannot be set aside unless manifestly against the weight of the evidence, but the question of the custody of children is governed by a different rule: Stafford v. Stafford, (Ill.) 132 N.E. 452; State v. Giroux, (Mont.) 47 P. 802. The Colorado court might undertake to modify the decree as to custody of children and necessitate a defense in that state; hence the right of removal depends upon the laws of this state; Aldridge v. Aldridge, (Minn.) 204 N.W. 325; Ex Parte Ashley, (Ore.) 231 P. 153; State v. Court, (Mont.) 195 P. 549. The facts present a proper case for the intervention of this court; In re Weston, (Mont.) 72 P. 512; Wald v. Wald, (Mo.) 151 S.W. 788. The children are the wards of the Wyoming court; a decree awarding custody of a child in the courts of one state is not binding upon the courts of another state; Griffin v. Griffin, (Ore.) 187 P. 601.

John Dillon and W. L. Walls for defendant in error.

It was the province of the court below to settle the question of custody; 29 Cyc. 1605; Mylius v. Cargill, 142 P. 919; 2 Bishop on Marriage and Divorce, 1189; Geary v. Geary, 20 A. L. R. 815; State v. Court, 128 P. 593. The welfare of the children is the determining question with respect to their custody; 29 Cyc. 1600. Ordinarily a parent will not be refused the custody of his child because he intends to take it to another state; Schouler, Vol. 2, 6th Ed., 1879; but removal may be forbidden; In re Krauthoff, 177 S.W. 1125; ordinarily removal will not be denied, if in the interest of the child; Ex Parte Davidge, 51 S.E. 269; Weatherton v. Taylor, 187 S.W. 450; Deringer v. Deringer, 10 Phila. 190; Parrish v. Parrish, 1915 L. R. A. 576. The District Judge had full power to make an order to remove the children from the state, depositing security for their return to plaintiff at stated periods.

POTTER, Chief Justice. BLUME, J., and KIMBALL, J., concur.

OPINION

POTTER, Chief Justice.

This is a proceeding in error complaining of a judgment and decree of the district court for Natrona County, made and entered at the conclusion of a hearing upon a petition by the plaintiff in error, plaintiff below, for the modification of a previous judgment and decree in the cause brought by the said plaintiff against the defendant for a divorce and the custody of the minor children, in so far as the said judgment denied the application of said plaintiff for the absolute control and custody of the children, subject only to the right of said defendant to visit them in plaintiff's home at all reasonable times, and that she be restrained from taking the children or assuming custody of them for any time whatever until the further order of the court. It appears that the original judgment granting the divorce also disposed of the question of alimony and of the custody of the children in accordance with the terms of a written contract entered into by and between the parties and filed in the action; that judgment having been rendered on the 29th day of June, 1921. The error assigned in the petition in error is that the court erred in overruling the plaintiff's motion for a new trial upon said petition and application for modification.

It appears that the original judgment in the cause, following a trial at which evidence was taken, wholly dissolved the bonds of matrimony existing between the parties, A. E. Stirrett and Edith M. Stirrett; that the custody of the infant children of the parties, Donald E. Stirrett and Robert McPherson Stirrett, was awarded to the plaintiff, A. E. Stirrett, for nine months of each year, "or during what is commonly known as the school year" and for the remaining three months of the year to the defendant, Edith M. Stirrett. As filed and entered with said judgment, there appears in the record a copy of the contract above referred to, which contains the following, among other things:

"Whereas, first party has brought action for divorce from second party, and it is considered advisable that questions concerning property, alimony, and custody of the children of the parties, can best be settled and agreed upon out of court, Therefore * * * the parties hereto agree: 1. In case first party shall prevail in his suit for a divorce and a decree therefor be entered, the said decree may, among other things, provide (a) That A. E. Stirrett may and shall have custody of the two minor children (naming them) during nine months of each year, or during what is called and commonly known as the school year. (b) That Edith M. Stirrett shall have care and custody of said minor children during the remaining three months of each year."

That appears to have been signed by the parties. It is recited in the judgment here complained of, which appears to have been dated June 18, and filed on June 20, 1925, and probably also entered upon that date, as facts shown upon the hearing upon said application which may be recited here, but without quoting: And it appearing that the plaintiff has re-married, and that the defendant has also remarried, which said marriage of the defendant occurred upon the 10th day of April, 1924, she then becoming and now is the wife of one Harry Liebhardt. And it appearing that the plaintiff has complied with all and singular the terms, provisions and requirements of the said decree heretofore entered and the said contract hereinbefore referred to, and that the status of the defendant, by reason of her marriage, has been changed so that said contract has become executed and is no longer binding and operative in certain particulars (as to alimony and property.) It then declares: Now, therefore, it is ordered, adjudged and decreed that the said decree made and entered upon the 29th day of June, 1921, be and the same is hereby modified in the following particulars: (c) That paragraph numbered 2 of said decree, wherein it is provided "that the custody of the infant children of the parties (naming them) be and is hereby awarded to the plaintiff A. E. Stirrett for nine months of each year, or during what is commonly known as the school year, and for the remaining three months of the year is hereby awarded to the defendant Edith M. Stirrett' be and the same is hereby modified as follows:

That the custody of said infant children of the parties "be, and the same is hereby awarded to the plaintiff, A. E. Stirrett, for twelve months out of each year, until the further order of this court, provided, however, that the defendant, Edith M. Stirrett, now Edith M. Liebhardt, be, and she is hereby permitted to visit said children at the home of the plaintiff at any and all reasonable times of the year, and that the said defendant be, and she is hereby permitted, upon application to be made to the District Court of this District, as hereinafter provided, to take said children to her home for a visit during such part of the three months summer school vacation as she may desire, it being required, however, that application for such visit shall be made to the District Court of this District, which said application shall be accompanied by a certified check in the sum of Two Thousand Dollars payable to the plaintiff, and the said certified check to be deposited with the clerk of this Court, upon condition that the said children shall be re-delivered to the possession of the plaintiff or his duly authorized agent, upon the termination of the time for which permission shall have been given to the defendant to have said children, provided that in the event said children shall be so re-delivered to the possession of the plaintiff or his duly authorized agent, the clerk of this court shall, and he is hereby ordered to return said certified check to said defendant or her duly authorized agent, but in the event the said children shall not be returned to the possession of the plaintiff or his duly authorized agent upon the termination of the time for which permission shall have been given to the defendant to have said children, the Clerk of the Court shall be, and he is hereby ordered to deliver said certified check to the plaintiff, in which event the said certified check and the money thereby represented shall be and become the property of the plaintiff."

Said order also thereupon dissolved a temporary restraining order that had been granted upon or shortly following the filing of said petition for...