Weygand v. Weygand

• Decision Date: 29 April 1941
• Docket Number: 8405.
• Parties: WEYGAND v. WEYGAND.
• Court: South Dakota Supreme Court

297 N.W. 689

68 S.D. 1

WEYGAND v. WEYGAND.

No. 8405.

Supreme Court of South Dakota.

April 29, 1941

Appeal from Circuit Court, Minnehaha County; Lucius J. Wall Presiding Judge.

Suit for divorce by Martha Weygand against Eugene Weygand. From an order denying plaintiff's application to modify decree of divorce, plaintiff appeals.

Affirmed.

Davenport & Evans, of Sioux Falls, for appellant.

Boyce Warren & Fairbank and John R. McDowell, all of Sioux Falls for respondent.

WARREN, Judge.

In May, 1930, the defendant married the plaintiff who had been divorced from a previous husband. Thereafter in September, 1933, they adopted a little boy, Donald, who is the subject of the controversy in the appeal before this court. In October, 1937, plaintiff commenced an action for a divorce. The defendant answered and filed a cross-complaint. A trial upon the issues was commenced shortly thereafter. Portions of the memorandum decision seem to reflect the impressions gathered by the trial court from the voluminous evidence presented. At the close of the trial the court made a memorandum wherein he alluded to the custody of the child and the conduct and faults of the parents.

Shortly after the memorandum the parties effected a reconciliation. The court, therefore, did not enter findings, conclusions, and a decree. In January, 1938, further difficulties again arose which caused the separation. Upon an order of the court additional evidence was submitted by both parties and the court again issued a memorandum decision which was in substance substantially the same as the one issued after the first hearing.

In July, 1938, findings of fact, conclusions of law, and a decree of divorce were entered of record. Among other things the court by its judgment decreed that the minor adopted child should be placed in the custody of the Columbus Children's Home, subject to the further order of the court. Other proceedings which are immaterial in this opinion took place, however, after the plaintiff's allotted time for appeal, she petitioned the court for a modification of the decree of the court in September, 1939. A hearing was held in October, 1939, which consisted of written affidavits on behalf of plaintiff, and written affidavits in answer to plaintiff's application by defendant. Matters seem to have drifted along until a little later when the present attorneys of record for plaintiff petitioned the court for a modification of the divorce decree and subsequent order relating to the support and custody of the minor child, having secured beforehand a dismissal of the hearing had before the court in October, 1939. This last hearing took place in May, 1940. Both oral and written evidence was submitted by both parties. The court, on the 16th of May, 1940, entered an order denying the application of the plaintiff to modify the decree of divorce.

We believe that it would serve no useful purpose to review the evidence presented to the trial court excepting to say that the findings and conclusions are fully sustained by the evidence.

Our attention has been called to what we said in Mastrovich v. Mavric, 66 S.D. 577, 287 N.W. 97, as controlling in this case. That opinion does not cover a similar fact situation. In that case we were dealing with the natural rights of a parent in opposition to the attempted adoption of a child by its grandmother, while in this case we are dealing with facts which the learned trial court felt would not entitle either of the parties to have custody and control of this adopted child.

The trial court has a wide range of discretion in awarding the custody of children in a decree of divorce and this discretion will not be disturbed...