Trompeter v. Trompeter
| Decision Date | 24 January 1976 |
| Docket Number | No. 47758,47758 |
| Citation | 545 P.2d 297,218 Kan. 535 |
| Parties | Tammy Gail TROMPETER, Appellant, v. Leo Eugene TROMPETER, Appellee. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. Custody embraces the sum of parental rights with respect to the rearing of a child, including his care. It includes the right to the child's services and earnings, and the right to direct his activities and make decisions regarding his care and control, education, health, and religion.
2. Judicial discretion is abused when judicial action is arbitrary, fanciful or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court then it cannot be said that the trial court abused its discretion. All judicial discretion may thus be considered as exercisable only within the bounds of reason and justice in the broader sense, and only be abused when it plainly overpasses those bounds.
3. A parent who is able to care for his children and desires to do so, and who has not been found to be an unfit person to have their custody in an action or proceeding where that question is in issue, is entitled to custody as against grandparents or others who have no permanent or legal right to custody.
4. The parental preference rule recognizes the rights of natural parents to their minor children as against others with no permanent or legal right to custody. It has no application to a case where both parents are contending for the custody of their minor children.
5. A trial court does not abuse the exercise of its power of discretion when it places custody of a minor child in one of the parents, but requires the child to reside with third parties, where the parent awarded custody exercises sufficient decision-making power regarding the child's care and control, education, health, and religion to constitute 'custody,' and the trial court deems such arrangement to be to the best interest of the child.
6. In a child custody dispute, the trial court awarded 'custody' to the natural father with the child to reside with third parties. On appeal the record is examined, and for the reasons stated in the opinion it is held: (a) The parental preference rule has no application to a dispute between the natural parents; (b) the natural father exercised sufficient decision-making power regarding the child's care and control, education, health, and religion to constitute 'custody'; (c) the trial court's decision does not constitute a 'sham' custody order; and (d) the trial court did not abuse the exercise of its power of discretion in making the custody order.
Thomas R. Oglevie, of Oglevie & Warren, Chartered, Goodland, and Perry D. Warren, Goodland, of the same firm, argued the cause, and were on the brief for appellant.
Charles A. Sparks, Jr., of Sparks & Foust, Goodland, argued the cause and was on the brief for appellee.
This is an appeal by Tammy Gail Trompeter (plaintiff-appellant) from the trial court's denial of her motion for change of custody of her seven year old daughter, Cynthia. The appellant, who was not found to be an unfit person to have custody of Cynthia, attacks the trial court's decree which continued 'custody' to Cynthia's father (Tammy's ex-husband), the appellee herein, because Cynthia 'resided with' a third party.
At issue on appeal is the meaning of the term 'custody.'
Tammy Gail Trompeter and the appellee, Leo Eugene Trompeter, were divorced in Sherman County on May 5, 1970. Custody of their one child, Cynthia Gwyn Trompeter, was temporarily given to Tammy. After receiving a State Welfare Department report, the Sherman County District Court determined, on March 4, 1971, that the best interest of Cynthia would be served by changing her custody from Tammy to Leo Trompeter, 'with said child to reside with Mr. and Mrs. Joy Kitchen of Ruleton, Kansas.' Since the order of March 4, 1971, Cynthia has continually resided with Mr. and Mrs. Kitchen who are not related to either party in this dispute.
Since April of 1971, both the appellee and the appellant have remarried. The appellee remarried in November 1972, and now resides in Brewster, Kansas. He lives close to town in a four bedroom house he recently purchased. He is engaged in farming and cattle ranching.
The appellant remarried and is now known as Tammy Winebaugh. She resides in Paramount, California. She has one child by her present marriage. Her new husband, a welder, makes a good living. Their apartment has plenty of room for Cynthia. The appellant recently had surgery which prevents her from bearing any more children.
On April 20, 1974, the appellant commenced this action requesting custody of Cynthia on the grounds that circumstances surrounding the child and the parties had materially changed. She contended her California home is a proper place to raise a child. Jeanette Glazier, a State Department of Social and Rehabilitation Services social worker, testified concerning a home study done of the Winebaugh home in California. Based on this home study, she could not say the appellant was an unfit person to have custody of Cynthia. The trial court concluded the mother would probably provide an average, or close to average, home for the child.
The appellee was opposed to Cynthia going to California and has resisted the appellant's motion. The appellee testified that he was familiar with Cynthia's activities; that he talked quite regularly about her care with the Kitchens; and that he visited Cynthia an average of two or three times a month. Mr. Kitchen placed the visits at an average of once every month, but indicated the Kitchens sought the guidance and advice of the appellee with respect to Cynthia. The appellee's testimony regarding his advice established the degree of care and control he exercised as follows:
The appellee then went on in some detail to discuss Cynthia's gymnastic and religious activities.
When the appellee was asked why he hadn't sought custody of Cynthia after his remarriage, the appellee testified he would love to have the child, but he felt she was better where she was because the Kitchens offered Cynthia a stable environment. The appellee's new wife, Bonnie Trompeter, corroborated the appellee's testimony. She went so far as to say that she wanted Cynthia from the first minute, but didn't have the heart to uproot her. The appellee did indicate he intends to keep a review of the situation so that at a future date as Cynthia grows older and gains an understanding she could move into the Trompeters' recently purchased home.
The evidence of all the parties agreed the Kitchens provided Cynthia with an excellent home. The appellee, his wife, the Kitchens, and the social worker who reviewed the situation all indicated that moving Cynthia at this point in her life would be emotionally upsetting. The social worker even indicated a change of custody at this time 'would cause some great emotional adjustment and would require quite a little bit of assistance in counseling, perhaps, to help her adjust to any new situation that she was placed in.' The social worker, therefore, recommended that Cynthia remain in the custody of her father residing with the Kitchens.
The appellee does not contribute any financial support to Cynthia, but he testified that he had offered money to the Kitchens for Cynthia's care but that they refused it.
The trial court recognized it was required to give custody to one parent instead of a third party absent a showing of parental unfitness. But the court held Cynthia was in the 'custody' of the appellee. It determined:
'. . . (T)he best interest of the minor child of the parties, Cynthia Gwen Trompeter, would be best served by her custody remaining in the Defendant, Leo Eugene Trompeter, with said child to reside with Mr. and Mrs. Joy Kitchen of Ruleton, Kansas, and with the Plaintiff to have reasonable rights of visitation, as previously ordered by the Court on the 4th day of March, 1971.'
The trial court's feelings are best stated in its findings:
On appeal the appellant contends since there was no finding that she is an unfit person to have custody, she is entitled to have custody as against the Kitchens, who have no right to legal custody, but who as a practical matter, have been given custody by Cynthia's father. She further contends the ostensible granting of Cynthia to the appellee is no more than a sham when he has turned over the supervision, direction, control and care of Cynthia to the Kitchens.
The appellee contends he has retained decision-making authority over Cynthia's care, control, education, health and religion. He argues the sum total of his activities amount to 'custody.' He further argues 'custody' and 'residing with' are not synonymous; that it is within the sound discretion of the trial court to make an order respecting custody where the child resides with another party.
On appeal both parties recognize the parental preference rule which recognizes the rights of natural parents as against others with no permanent or legal right to custody. The law...
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