Yearsley v. Yearsley
| Decision Date | 27 April 1972 |
| Docket Number | No. 10938,10938 |
| Citation | 94 Idaho 667,496 P.2d 666 |
| Parties | Margaret YEARSLEY, Plaintiff-Respondent, v. Leon C. YEARSLEY, Defendant-Appellant. |
| Court | Idaho Supreme Court |
Johnson & Olson, Pocatello, for defendant-appellant.
Max F. Parrish, Pocatello, for plaintiff-respondent.
On May 12, 1964, Margaret Yearsley was granted a divorce from her husband, Leon C. Yearsley. The plaintiff-wife was represented by counsel. The husband made no appearance and a clerk's default was entered. After a hearing the district court entered a decree whereby custody of Theresa Yearsley, then a one year old, was awarded to the plaintiff together with monthly support payments for the child.
At some time in late 1965, the father, Leon Yearsley, obtained temporary control of the child, Theresa, from the mother. Leon stated that at the time he was not in a position to make a home for Theresa. He therefore placed the child with the Alva Butler family, whose relationship with the Yearsleys is not made clear from the record. Subsequently, Leon filed an affidavit alleging unfitness of the mother to obtain permanent custody of the child and to obtain temporary custody of the child until the allegations could be investigated. The trial court granted the father's request for temporary custody and issued an order to the mother to show cause why the father should not be given permanent custody.
The mother answered with an affidavit alleging failure of the father to abide by previous orders of the court regarding visitation rights and support payments, and denying any neglect of the child.
On January 7, 1966, after a hearing with both parties being present and both being represented by counsel, it was stipulated that an independent investigation be made of both parties by Jack Contor of the Department of Public Assistance to determine their suitability regarding custody of the child. In the meantime, the child was to remain with the father, who had placed the child with the Butlers. On February 11, 1966, apparently after the investigation had been completed, the trial judge issued a memorandum decision and order stating that it was his determination that neither the father nor the mother was suited to have custody of the child and that the child should be placed with the Alva Butler family, with Leon paying monthly support. The court granted visitation rights to both Leon and Margaret, but stated that the child was not to be placed with any family other than the Butlers without the express consent of the court.
In August, 1970, the father petitioned the court alleging changed conditions since the decree of February 11, 1966, and asked custody of Theresa. In support of his petition Leon filed an affidavit stating that he was no longer in debt and was in a position financially and otherwise to properly care for his daughter. He stated that his mother, Theresa's grandmother, would keep house for them.
The petition was heard by the district court on October 23, 1970. The record does not disclose any attempt to notify the natural mother and original plaintiff Margaret Yearsley of this proceeding. She did not appear nor did the Butlers and Theresa. Leon testified as to why he should have custody of the child. Two other witnesses also testified on behalf of the father.
At the conclusion of the hearing the trial court stated it would take the case under advisement. The trial court informed the petitioners that:
'I might also say to you that I might have the Department of Public Assistance give me a report on this, and if I do this, it will be a little while before a decision comes down.'
Petitioner's attorney made no comment regarding that statement.
On November 24, 1970, the trial court wrote a letter to the Department of Public Assistance stating that a motion had been made in the Yearsley case which the department had investigated previously, and asking that the custody of Theresa be changed from the Butlers to Leon's grandmother since the child would be happier there. The trial court also stated in the letter that he thought the Butlers had made a fine home for Theresa and that he doubted the child would be happier with the grandmother. Nevertheless, the trial judge requested the Department of Public Assistance to investigate the grandmother's home and talk to the Butlers concerning Theresa.
On December 16, 1970, the Department of Public Assistance made its report to the court. The report appears to be objective and favorable to both parties investigated. But, it concluded that:
On January 15, 1971, the trial court issued its memordandum decision and order based on the evidence from the hearing and the report of the Department of Public Assistance. The court stated that there was no question that the grandmother was a fine woman and would exert a good influence on the child in question. However, the trial court noted the grandmother was some what 'advanced in years' (67 years old) while the child was of a 'tender age' (eight years old). The trial court noted that since 1966 the Butlers had done an excellent job in taking care of Theresa and that the child was very fond of them as well as their children, one of whom was about the same age as Theresa.
The trial court concluded that it is better for a young child to be raised by someone in an age group such as the Butlers and that it would be in the best interest of the child to be left with them. The court ordered that she remain with them and denied the petition.
Leon Yearsley has appealed from that order. The appellant has made no assignments of error as required by Rule 41(2) of this Court. However, this procedural error on the part of counsel should not be fatal to further review in this case where the immediate welfare and future life of the child, who is neither an appellant nor respondent, is at stake. Therefore, we will address ourselves to the issues appellant raises in his argument.
The general rule in Idaho is that in normal situations, the natural parents are entitled to custody of the child unless it is affirmatively shown that the parent has abandoned the child or that he is unsuitable. See I.C. § 32-1007:
However, this right is not absolute and is qualified. 1 In an action such as the one at bar, the general rule will be followed unless it is affirmatively shown that both parents are unfit to have custody, or that they are unable to properly maintain the child and provide for proper training and education. 2
On February 11, 1966, the trial judge issued a memorandum decision and order stating that it was his determination that neither the father nor the mother was suited to have custody of the child and the child should be placed with the Butler family. The party seeking modification of a divorce decree has the burden of proof regarding change of conditions of the parties involved. 3 The proof must establish:
'(S)uch changed conditions and circumstances that the best interests and welfare of the minor children required the trial court to exercise its discretionary powers, thereby to modify the original decree.' (Emphasis added) 4
It should be emphasized that the case at bar originated in 1964 in a divorce proceeding and that the district court has maintained continuing jurisdiction over the matter of custody of the minor child since that time. It was determined in 1966 by the district court that the father was not suited for custody of the child and legal custody was granted to the Butlers. This fact clearly distinguishes this case from those such as Spaulding v. Childrens Home Finding and Aid Society, 5 where no such finding of unsuitability had been made regarding the appellant.
In determining whether the trial court was required to exercise its discretion and thereby modify the decree 6 because of the evidence offered by the father, the case of Application of Altmiller 7 is on point:
'In cases of this nature, three rights of interest are to be considered: First, that of the parents; second, that of the person who has for years discharged all the obligations of the parents; third, and chiefly, that of the child.' (Emphasis added.)
While Altmiller was a habeas corpus proceeding by the father against the grandmother for custody of the minor daughter, this Court stated that the same principals should govern the actions of courts in awarding custody as govern divorce proceedings. 8 In Altmiller, as in the case at bar, the child had been living for almost seven years with the party from whom custody was sought. This Court stated that in such a situation it must take into consideration,
9
This Court went on to hold that while on the record both parties were fit and proper...
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Andersen, Matter of
...parents to the care and custody of their own children, 2 it has also recognized that this right is not absolute. Yearsley v. Yearsley, 94 Idaho 667, 496 P.2d 666 (1972); Child v. Clouse, 93 Idaho 893, 477 P.2d 834 (1970); See Stjernholm v. Mazaheri, 180 Colo. 352, 506 P.2d 155 (1973). By th......
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Kelley v. Kelley
...People in Interest of A.M.D., note 16, infra; State ex rel. Fisher v. Devins, note 16, infra; In re Kramer, note 16, infra; Yearsley v. Yearsley, note 16, infra; Anderson v. Anderson, note 20, infra; Larson v. Larson, note 16, infra; Moody v. Gilbert, note 16, infra; Roberts v. Roberts, not......
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Revello, Matter of
...supra, (step-father awarded custody over father where step-father had custody of the children for over four years); Yearsley v. Yearsley, 94 Idaho 667, 496 P.2d 666 (1972) (nonparents granted custody of child over father where nonparents had custody of child for seven years); Application of......
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Stockwell v. Stockwell
...natural parent to have custody of his or her own child as against non-parents, concluding with a critical review of Yearsley v. Yearsley, 94 Idaho 667, 496 P.2d 666 (1972), Yearsley being the case relied upon by the Ewing majority 5 for the advancement of "the child's best interest" as the ......