Tuttle v. Tuttle

• Decision Date: 31 August 1959
• Docket Number: No. 6531,6531
• Citation: 66 N.M. 134,343 P.2d 838,1959 NMSC 63
• Parties: Ruth TUTTLE (now Ruth McMullen), Plaintiff-in-Error, v. Vernal TUTTLE, Defendant-in-Error.
• Court: New Mexico Supreme Court

Page 838

343 P.2d 838

66 N.M. 134

Ruth TUTTLE (now Ruth McMullen), Plaintiff-in-Error, v. Vernal TUTTLE, Defendant-in-Error.

No. 6531.

Supreme Court of New Mexico.

Aug. 31, 1959.

Smith & Smith, Fred C. Tharp, Clovis, for plaintiff in error.

Gore & Nieves, Clovis, for defendant in error.

MOISE, Justice.

This action is brought here by writ of error by Ruth Tuttle, now Ruth McMullen, plaintiff in a divorce action below, to review the action of the lower court in modifying the divorce decree so as to deprive her of all custody of her minor children and denying her visitation rights, except with permission of her divorced husband, and then only in his home or that of his brother.

Plaintiff-in-error, hereinafter referred to as 'wife', and defendant-in-error, herein after referred to as 'husband', were married in 1947. Wife had been married before and had two daughters. Two sons, Vernal D. Tuttle, Jr., and Marshall Wayne Tuttle, were born as a result of the marriage of the parties to this action. These boys were eight and five years of age, respectively, in July, 1958, when wife filed suit for divorce on the grounds of incompatibility. An answer was filed by the husband and on September 30, 1958, wife was granted a divorce. The divorce decree provided that the wife should have the custody of the minor children for the period from August 25 to May 25 the following year and the husband should have their custody from May 25 to August 25 each year. The decree further provided that the husband should pay the wife $100 per month support for the children while she had them. Also, it was provided 'that neither party shall remove the children from the State of New Mexico without the written consent of the other party having been first obtained.'

On November 20, 1958, husband remarried and on November 24, 1958, wife remarried. The man married by the wife was eight years her junior and she knew him only five weeks when she married him. He was employed by the Department of Agriculture of the United States in its crop inspection work covering a wide area of Texas and New Mexico, and at the time of the marriage was living at Rising Star, Texas. The most convenient place for him to reside and take care of his work would have been Abilene, Texas, and accordingly he and wife were looking for a place to live there. After the marriage of wife to Mr. McMullen she stayed with him during the week, returning to Portales weekends. While away from Portales she left the older of the boys who was in school in the care of a babysitter, along with her two daughters, and on one or two occasions took the younger boy with her on her trips to Texas. Husband knew of this activity on her part having been told by the boys and having talked to wife and younger son at least once on the telephone when they were in Texas.

On December 17, 1958, husband filed a motion setting forth that the wife had removed Marshall Wayne Tuttle from the State of New Mexico, contrary to the terms of the divorce decree, and that she was about to remove Vernal D. Tuttle, Jr., and asked that she be cited for contempt of court. An order to show cause was issued pursuant thereto. On January 9, 1959, the wife filed a motion asking that the divorce decree be modified to permit her to take the two minor children to reside with her in Abilene, Texas, during the period of each year when she had their custody.

A hearing was had on the order to show cause and on the motion of the wife on January 9, 1959, at which time the wife, husband and Mr. McMullen (present husband of wife) testified as to what had transpired in connection with Marshall Wayne Tuttle, and as to the plans of the McMullens. At the close of the hearing the court made no finding on the contempt citation or the motion to permit wife to take the children with her to Texas, but announced that the custody of the boys would be granted exclusively to the husband. The wife, by her counsel, duty objected to this action by the court, pointing out that no questions of change of custody were involved in the issues before the court, and that the court's actions without notice that change of custody was within the issues was improper and denied the wife opportunity to prepare and to meet such issues.

An order was entered pursuant to the court's announced decision. This order was subsequently amended to give the wife visitation rights 'at the sole discretion' of the husband, with the place of visitation limited to the husband's home, or that of his brother. It is this order as amended that is here for review.

Two questions are presented by the briefs. They are (1) did the court err in decreeing a change of custody, without its being sought by the pleadings and without the wife having an opportunity to meet any questions in connection therewith; and (2) did the court err in refusing to modify the decree to permit the wife to remove the children to Texas?

This Court has held that modification of a divorce decree is not required except upon a showing of material change of circumstances. Edington v. Edington, 50 N.M. 349, 176 P.2d 915. By the same token, it is upon a showing of such change of circumstances or new...