Young v. Young

• Decision Date: 22 January 1963
• Docket Number: No. 40050,40050
• Citation: 1963 OK 14,383 P.2d 211
• Court: Oklahoma Supreme Court
• Parties: William A. YOUNG, Plaintiff in Error, v. Mary E. YOUNG, Defendant in Error.

Page 211

383 P.2d 211

1963 OK 14

William A. YOUNG, Plaintiff in Error, v. Mary E. YOUNG, Defendant in Error.

No. 40050.

Supreme Court of Oklahoma.

Jan. 22, 1963.

Rehearing Denied July 2, 1963.

Syllabus by the Court.

1. In awarding the custody of a minor, the court should give paramount consideration to what appears to be for the best interest of the child in respect to its temporal, mental and moral welfare.

2. In a proceeding to modify provisions of an order relating to custody of child, burden of proof is upon applicant to show a substantial change in conditions since entry of order sought to be modified which bear directly upon welfare and best interest of child or show that material facts bearing upon welfare and best interest of child were unknown to court at time order sought to be modified was entered.

3. The trial court should not award custody of a child as a means of punishment for contemptuous conduct of a parent but may consider such conduct in determining the welfare of the child.

4. Record examined and Held: In refusing to materially change the custodial provisions of its prior order, the trial court did not abuse its discretion.

Appeal from the District Court of Creek County; Kenneth Hughes, Judge.

This an appeal by the plaintiff below from an order on a hearing to modify a former modification order pertaining the custody proceedings growing out of a divorce between the parties. Affirmed.

Finch & Finch, Sapulpa, for plaintiff in error.

Blakemore & Wilson, Sapulpa, for defendant in error.

BERRY, Justice.

William A. Young, hereinafter referred to as 'plaintiff', and Mary E. Young, hereinafter referred to as 'defendant', were married in Creek County, Oklahoma, on June 22, 1954. To this marriage a daughter, hereinafter called 'child', was born in 1955. Plaintiff filed for a divorce which was granted to him on September 18, 1957. Divorce decree left the custody of the child with defendant due to child's tender years, with visitation rights in plaintiff who was ordered to pay $40.00 per month child support. Both plaintiff and defendant were found fit and proper persons to have custody of child.

On March 2, 1960, the trial court modified the divorce decree and granted the father 3 months' custody out of the year (from June 1 to Sept. 1) and left custody in mother for remainder of year. Plaintiff was to pay transportation expenses of child to defendant's home in California. This order (hereinafter referred to as 'first order'), was in effect from March 2, 1960 until the order of January 3, 1962, (hereinafter referred to as 'last order'.)

In June of 1960, plaintiff's mother and his wife by a subsequent marriage, hereinafter called 'step-mother', went to California to obtain custody of the child in accordance with the first order. Upon reaching California they went to defendant's last-known address but were unable to locate defendant or the child or learn their whereabouts. It appears that defendant had moved and failed to give this information to plaintiff. Defendant was aware of the unsuccessful effort of plaintiff to locate the child. It was not until February, 1961, that plaintiff learned the whereabouts of the child or of the defendant.

On the latter date, in response to a telephone call from California, plaintiff and the step-mother went to California. They found the child and her 10-year old step-brother in defendant's home. Defendant was not at home when they arrived. Plaintiff and his wife testified that the child was unattended; was 'dirty' and hungry and in ill health, which was disputed by defendant. Plaintiff and his wife waited for some time before defendant returned. Defendant told them she was not then employed and that they could take the child back to Oklahoma with them. Plaintiff and his wife were to return the next day for the child. The next day defendant required plaintiff and the step-mother to sign an instrument prepared by a lawyer which obligated the return of the child to defendant in California on September 1, 1961 as provided in first order or plaintiff would be liable for $10,000.00. Upon plaintiff and his wife executing this instrument defendant permitted them to bring the child to Oklahoma.

Thereafter the step-mother wrote to defendant concerning the welfare of the child. Defendant did not write but sometimes telephoned, at least one time collect, and either talked to the step-mother or to plaintiff. Defendant sometimes asked for money when she telephoned. On one occasion plaintiff sent money to defendant for her return to Oklahoma. After receiving the money she failed to return due to financial problems. Plaintiff, on another occasion, sent defendant money to cover fare of child's step-brother to Oklahoma. The step-child's natural father came to Oklahoma for him and took him to his home in Nebraska.

On August 31, 1961, defendant called long distance and demanded the return of the child to California within 24 hours. Plaintiff was not at home but defendant talked to the step-mother who refused to comply with demand because plaintiff was not at home. When plaintiff returned home and learned of the demand, he refused on the grounds, according to his testimony, that when he sent for defendant's other child, defendant had orally agreed that plaintiff could keep the child with him and enroll her in school in the fall.

Defendant later returned to Oklahoma, and on December 2, 1961, along with her sister, went to plaintiff's home to regain custody of the child. The step-mother was present but plaintiff was out of town. This visit ended with the step-mother ordering defendant and her sister out of the home.

Defendant, on December 4, 1961, filed application for the return of the child. On the same date plaintiff filed an application seeking modification of the custodial provisions of the first order.

On January 3, 1962, following a hearing on the mentioned applications, the court found and held that the first order should be reinstated but that plaintiff should have custody of the child until end of that school term after which the child was to be returned to defendant, from which order plaintiff has appealed.

Plaintiff states his contentions under two propositions: (1) Where the undisputed evidence shows that it is to the best interest of the child to be with her father rather than her mother it is an abuse of the discretion of the trial court for the child to be left in the custody of the mother; and (2) that the trial court had sufficient basis to change the custody from the mother when the mother refused to deliver child to father in violation of the trial court's order.

We shall consider these propositions in the order set out above.

Plaintiff cites Laughton v. Laughton, 71 Wyo. 506, 259 P.2d 1093, 43 A.L.R.2d 351, and quotes a portion of the opinion which, out of context is persuasive. In the cited case it is held that the burden of proof on a motion to modify lies with the applicant to show not only that the...