Wiesner v. Wiesner

• Decision Date: 26 February 1963
• Docket Number: No. 10002,10002
• Citation: 80 S.D. 114,119 N.W.2d 920
• Parties: Coleen M. WIESNER, Plaintiff and Appellant, v. Charles Howard WIESNER, Defendant and Respondent.
• Court: South Dakota Supreme Court

Page 920

119 N.W.2d 920

80 S.D. 114

Coleen M. WIESNER, Plaintiff and Appellant, v. Charles Howard WIESNER, Defendant and Respondent.

No. 10002.

Supreme Court of South Dakota.

Feb. 26, 1963.

Rehearing Denied March 29, 1963.

Stover, Beardsley & Osheim, Watertown, for plaintiff and appellant.

Henry C. Mundt, Sioux Falls, for defendant and respondent.

HANSON, Presiding Judge.

In this contested divorce action the plaintiff wife appeals from a judgment awarding her husband (1) a decree of divorce on his cross complaint, (2) custody of their three minor children, and (3) all of the household goods and property belonging to the parties except plaintiff's personal effects. Pending appeal execution on the judgment was stayed and plaintiff was allowed to retain custody of the children.

Plaintiff is primarily concerned over the custody of her children. Our review will accordingly be largely confined to the question of whether or not the trial court abused its discretion in this regard.

The Wiesners were married on June 19, 1954. Three children were born to the union--David, Diane, and Dallas aged 6, 5, and 2 respectively. At the time of trial plaintiff was twenty-six years of age and defendant thirty. After their marriage the parties resided on a farm near Clear Lake, South Dakota, for a period of two years. Plaintiff assisted in the farm work and chores. In the fall of 1956 defendant decided to give up farming and attend State College at Brookings. In furtherance of this plan the family moved to a small acreage on the outskirts of Brookings which was owned by defendant's parents. This property consisted of some farm buildings, a garden plot, and 20 acres of pasture.

Defendant enrolled as a student at State College on November 11, 1956. By attending two summer sessions he completed the four-year course in three and one-half years graduating with a bachelor's degree in soils and dairy at the end of the 1960 school term. While attending college plaintiff supported himself and family by utilizing the farm buildings and pasture with a small herd of dairy cattle, some chickens, and 16 head of sheep. Later on he obtained part-time employment at a service station in Brookings. In the summers he did some custom farm work and obtained other outside employment. During most of this time plaintiff, in addition to her household duties, assisted with the milking and other chores around the farm.

The Wiesner marriage continued without any evident stress or disruptive force until the summer of 1959. Defendant was then employed by a contractor in Sioux Falls and got home only on week ends. Their farm home was located a short distance from the city dump and was occasionally infested with rats. The city sent Eldon Bailey, a rat exterminator, out to help alleviate this condition. He soon found a greater interest at the Wiesner farm. Under the pretense of going to a card club plaintiff would go out with Bailey. This man was married and lived in Watertown. Plaintiff admitted going to Sioux Falls with him for dinner and the two were seen together in parked cars in the Wiesner farmyard and near the Union Building at State College. This affair continued through the fall of 1959. After a quarrel regarding Bailey, plaintiff left her family and stayed with her parents from November 1959 to February 1, 1960. When she returned defendant condoned her past conduct on condition she leave Bailey alone and act as a good wife. Both conditions were soon broken by plaintiff. After May 1, 1960 she refused to have marital relations and she did not give up Mr. Bailey.

After graduating from college defendant obtained employment with the U. S. Soil Conservation Service at Fessenden, North Dakota, at a salary of $4,675. He rented a house and the family moved in the latter part of June, 1960. The change did not improve relations between the Wiesners. Shortly after moving to North Dakota plaintiff told defendant she needed the love of Bailey and was going to do anything she could to get him.

About a month after moving to North Dakota plaintiff returned to South Dakota with the children for a visit which ripened into a permanent separation. She now lives in a rented apartment in Clear Lake and works as a nurse's aid at the Deuel County Hospital. She continues to see Mr. Bailey. Plaintiff personally takes care of the children during daytimes and has a relative employed as a babysitter while she works the night shift at the hospital.

In awarding custody of any minor child a court must be guided by what appears, from all the facts and circumstances, to be for the best interest of the child relative to its temporal, mental, and moral welfare. The feelings and desires of the parents are subservient to this paramount consideration except as such factors may relate to the best interest of the child. Taber v. Taber, 209 Cal. 755, 290 P. 36. Likewise, no showing or finding of unfitness is necessary to enable a court to award custody to one parent or the other. It is again the welfare of the child and not the shortcomings of the respective parents which is determinative. Holsinger v. Holsinger, 44 Cal.2d 132, 279 P.2d 961. Furthermore, in making this delicate and perplexing decision courts are not engaged in a domestic disciplinary action wherein the custody of a child becomes a means of punishing the guilty or rewarding the innocent. Ashwell v. Ashwell, 135 Cal.App.2d 211, 286 P.2d 983.

The children in this case are all 'of tender years' within the custodial directive contained in SDC 14.0505 as follows: 'As between parents adversely claiming the custody or guardianship, neither parent is entitled to it as of right, but, other things being equal, if the child be of tender years, it should be given to the mother * * *.' The trial court has a broad discretion in matters of this...