Wallace v. Wallace

• Citation: 128 N.W. 143,26 S.D. 229
• Parties: WALLACE v. WALLACE.
• Decision Date: 04 October 1910
• Court: Supreme Court of South Dakota

128 N.W. 143

26 S.D. 229

WALLACE v. WALLACE.

Supreme Court of South Dakota

October 4, 1910

Appeal from Circuit Court, Brown County.

Action by Louise Tuttle Wallace against William G. Wallace, in which a divorce was granted to plaintiff. From an order awarding custody of a child, defendant appeals. Affirmed.

Charles M. Stevens, for appellant.

A. W Campbell, for respondent.

WHITING P. J.

This is an action for divorce brought in June, 1908, in Brown county. The defendant appeared by counsel, waived answer or demurrer and consented that the cause might be submitted to the court on two days' notice. It was so submitted in July, 1908 the defendant appearing at the hearing by the counsel by whom he is now represented in this court. The trial court, Judge McCoy presiding, made findings of fact to the effect: That the parties were married in the year 1900; that they had, as issue of such marriage, one child, a girl, Elizabeth Wallace aged six years; that defendant had been guilty of extreme cruelty toward plaintiff, causing grievous mental and bodily suffering; that in 1905 defendant willfully deserted and abandoned plaintiff; that for more than one year prior to such action defendant had neglected to provide plaintiff with the common necessaries of life, though able so to do; that plaintiff had always conducted herself towards the defendant as a good and faithful wife; and that the wrongful conduct of defendant has been without justification or excuse. As a conclusion of law the court found that plaintiff was entitled to a decree of divorce. The findings and conclusions were entirely silent as to whether either of the parties were fit to have the custody of the child or as to who should have such custody. The decree, however, provided that the custody of the child should be divided, each parent to have such custody six months in the year, and the provisions of the decree relating to custody of the child were to continue "so long as said child remains of tender years or until the remarriage of either party to this action."

In May, 1909, defendant moved the court that granted the divorce, Judge McNulty then presiding, for an order vacating and modifying the above decree, so far as it related to the custody of the child, and granting the sole custody of the child to the defendant; said motion reciting: "That since the entry of said judgment, said plaintiff has married, and that said judgment does not make provision for her having the custody and possession of said child after her marriage, and that it is for the best interests of the child that the defendant should have the sole and exclusive possession and custody of her." This motion was supported and resisted by a large number of affidavits, there being no oral testimony received, and in June, 1909, the court made its order herein by which the provisions of the decree so far as they related to custody of the child were vacated, wherein it was recited: "That it is for the best interests and for the welfare of said minor child, Elizabeth Wallace, that she remain in the custody of one of the parties to said action the school year, so as not to interfere with her education, and it is now-" and by which order the custody of the child was given to the plaintiff during the nine months from September 1st to June 1st and to the father during the balance of each year. From this order the defendant has appealed and presents the following assignment of error: "And the appellant herein says that there is manifest error on the face of the record, in that the order and decision of the court upon said motion is not sustained by the evidence and is contrary thereto, in the following particulars: The court by its judgment of divorce in said cause in effect adjudged and determined that the defendant was a fit and proper person to have the care and custody of his child for at least one-half of the time even during her tender years, and that the plaintiff was entitled to her custody and possession for only one-half of the time, while the evidence upon the motion establishes the fact that the plaintiff has since the judgment married the destroyer of the home of these parties and will take the child into such new home, and the child will be subjected to his baneful influence."

Appellant contends that, inasmuch as no oral evidence was offered upon the motion which was heard by a judge other than the original trial judge, "the court should review and weigh the evidence the same as if it were an original case before it and no especial weight should be given to the findings and decision of the lower court. This court is not bound by the finding and decision of the lower court." Appellant is right in such contention; the principle involved having been recognized by this court in Sands v. Cruikshank, 15...