Tomlinson v. Tomlinson

Citation93 Idaho 42,454 P.2d 756
Decision Date22 May 1969
Docket NumberNo. 10253,10253
PartiesShirley Mae TOMLINSON, Plaintiff and Cross-Defendant-Respondent, v. Karl Don TOMLINSON, Defendant and Cross-Plaintiff-Appellant.
CourtUnited States State Supreme Court of Idaho

Robert J. Fanning, of Albaugh, Bloem, Smith & Pike, Idaho Falls, for appellant.

Thomas E. Moss, Blackfoot, for appellee.

SHEPARD, Justice.

This case arrives here procedurally as a result of a modification of a previously issued divorce decree. The district court issued an order changing the custody of the children from their father to their mother. It is the most fundamental rule of appellate procedure that this Court will not attempt to substitute its judgment and discretion for that of the trial court except in cases in which the record reflects a clear abuse of discretion by the trial court. I.C. § 32-705; Saviers v. Saviers, 92 Idaho 117, 438 P.2d 268 (1968); Clements v. Clements, 91 Idaho 732, 430 P.2d 98 (1967). 'In a divorce action an abuse of discretion occurs when the evidence is insufficient to support a finding that the interests and welfare of the (children) will be best served by changing the custody of the (children).' Larkin v. Larkin, 85 Idaho 610, 382 P.2d 784 (1963); Rogich v. Rogich, 78 Idaho 156, 299 P.2d 91 (1956). It is manifest from the record presented here that the trial court clearly abused its discretion. It is unfortunate that in view of our ruling this opinion must necessarily review at length the circumstances as clearly shown by the uncontroverted evidence.

Appellant and respondent were married in 1960. There were born of that marriage two children, one boy and one girl, who are now approximately aged 8 and 6, respectively. In July, 1965, the respondent wife filed a complaint against the husband seeking a divorce, custody of the children, and support. Defendant entered his answer and cross-complaint, in which he sought, among other things, the custody of the children on the ground that the wife was then living in adultery with one Bill Tomlinson, defendant's uncle. On the 14th day of December 1965, a default judgment was entered in favor of the husband. Respondent later claimed that she was not served with process. However, such claim was not substantiated in the record and the trial court in his comments indicates that he believed the respondent mother did not have enough interest in the matter to make an appearance. In any event, the trial court, upon the entry of the default, made findings of fact and conclusions of law, which findings and conclusions were incorporated and adopted by the trial court in the present motion for modification. Among other things, the court found as facts that the wife voluntarily left the home of the husband, associated openly and notoriously with Bill Tomlinson, and held time with the said Tomlinson, and held herself out to be his wife. The court found that they were living in adultery and that the wife was in fact then pregnant by Bill Tomlinson. The court further found that Bill Tomlinson had been married twice previously and ten children had been born as the issue of his marriages, none of whom had been adequately supported by him. It found that Bill Tomlinson drank intoxicants to excess and that when so intoxicated became violent, abusive, and had on various and diverse occasions beaten his wives and children. It held that Bill Tomlinson was not a fit or a proper person to be associated with the children. The court further found that the wife neglected the children, and because of this association with Bill Tomlinson, she, too, was an unfit and improper person to have the care and custody of the children. The court found that the father, on the other hand, was a fit and proper person to have custody of the children.

The court awarded a default judgment of divorce to the husband and awarded him custody of the two children. The custody of the children is the only point at issue here. There is no contention by either party that the findings of the trial court in the original decree of divorce were not correct and did not accurately represent the circumstances existing at that time.

Appellant husband placed the two children in the care of their paternal grandparents and all the evidence presented indicates that that home was a proper and desirable one in every manner. In August, 1967, appellant father married one Doris Tomlinson. She had been previously married and she and her three children, presently all under ten years of age, had been abandoned by her previous husband. Appellant and his present wife and their five children now live in a farming area outside of Terreton, Idaho. The record before us is devoid of any evidence critical of the present home life of the children. It appears undisputed that the appellant and his wife and their five children are an ordinary family in every respect. The children are loved and well cared for in every way-spiritually, morally, educationally and materially. There is some point made by respondent that the father of the children does not earn as much money presently as does Bill Tomlinson, the present husband of respondent. But there is no criticism by the respondent of the father and his present wife or that they in any way abuse the children or provide other than an almost ideal atmosphere for their custody and rearing. In fact, respondent admits that the appellant and his present wife have taken great care to prevent any alienation of the children from the mother and her present husband. They appear also to have cooperated in every way to facilitate the exercise of the visiting privileges established by the court. There is testimony that the respondent mother was made welcome in the home of the father and his present wife, and even that gifts were made by the present wife of appellant for the children to give to their mother at Christmas.

Turning now to a consideration of the circumstances of the respondent mother, the evidence is uncontested that the trial court was correct in all of its findings in connection with the original decree of divorce, to-wit: that the mother was living in adultery with Bill Tonlinson, the uncle of her husband; that she at that time was then pregnant by him; that he was virtually an alcoholic; that he was known to be violent and abusive not only to his former wives but also to his children; that he had failed to adequately care or contribute financially to his previous ten children; that some of them grew up with grandparents or great-aunts; that he had a criminal record for drunkenness and bad checks and had spent time at various occasions in jail.

Shortly after the award of the divorce dissolving the marriage of appellant and respondent, respondent married Bill Tomlinson and they moved to Salt Lake City. Within a matter of days after the marriage the child was born, but died shortly after birth. Respondent and her new husband have had an additional child. The testimony shows that respondent mother is presently 26 years of age and her new husband is approximately 46 years old.

In 1966, approximately one year after the issuance of the divorce decree, respondent herein petitioned the trial court for a modification of the divorce decree, asking that custody of the children be placed in her. Testimony was presented at that time by both parties. However, no reporter was present and therefore the transcript is lacking in this respect, except as said evidence was repeated in the latest hearing for modification. The testimony adduced at the previous modification hearing, to the extent that we can determine the same, sought to establish a change of circumstances on the part of the mother and her husband. That petition for modification was denied by the trial court. The record before us indicates that the petition of the mother for a modification of the decree was denied on the ground that while she was at that time no longer living in adultery and had in fact married the man, there was no sufficient showing that the present husband had sufficiently changed his ways of life to make him a fit and proper person to be associated with these two children. The husband evidently testified that he had reformed and was no longer an alcoholic. That testimony was controverted, however, when the brother of Bill Tomlinson came before the court and testified that Bill Tomlinson was not to be believed because he and Bill Tomlinson had been drinking togehter. In fact, he said they had both been drunk on diverse occasions since the marriage of Bill Tomlinson to the mother of the children herein.

The record of the proceedings on the present petition for modification reflects testimony by the mother of the children, by Bill Tomlinson, by a 23-year-old son of Bill Tomlinson, and by the employer of Bill Tomlinson. All testify to the effect that he has reformed and is no longer an alcoholic, that he loves his present new child, and that he is working steadily at a job in Salt Lake City, where he and his wife intend to remain. He has had no recent trouble with the law, and he is now a fit and proper person to have the custody of the two children together with his present wife. These facts do not appear to be disputed by the appellant.

There is absolutely no evidence, and in fact respondent admits, that the circumstances of the father and his wife have not changed since the previous modification decree. The father and his present wife, in effect, are admittedly fit and proper persons to have custody, and the home situation is almost ideal from the standpoint of the children.

The respondent mother states that the children love her (which is not contested) and that they would prefer to be living with her rather than their father. During the hearing on the petition for modification, the trial court interviewed the two children, then approximately aged 7 and 5, evidently in an effort to determine what their preferences were as to their custody.

Having reviewed at length the...

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  • Andersen, Matter of, 12891
    • United States
    • United States State Supreme Court of Idaho
    • December 6, 1978
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