Newman v. Newman , 145 Kan. 1 ( 1937 )

The opinion of the court was delivered by

Burch, C. J.:

The proceeding in the district court was primarily one to determine which of two divorced parents should have the custody of their child, a little girl less than four years old. A previous order had given custody of the child to the mother. An application by the father to change the order was denied. Each parent charged the other with contempt of court for disobedience of the former order. The court found the father guilty, and found the mother not guilty of contempt. No penalty was assessed against the father, but he was required to pay to the mother, within thirty days, a portion of the sum previously awarded to her for support of the child, which he had arbitrarily refused to pay. After that, the previous order relating to payments to be made by the father to the mother for support of the child was to be complied with. The father appeals.

No rule of law applicable to solution of controversies of this character is in disputé, and the case is purely one of fact. Except for some letters, the testimony, was oral. The child, the mother, the father, his second wife and the witnesses were before the court. Some questions of candor, if not of veracity, and some conflicts in the testimony were to be resolved. The situation and circumstances of the parties were adequately portrayed, and the case was peculiarly one for decision of the trial court.

One ground of the motion for a new trial was that the findings and judgment of the court were contrary to the evidence. It would serve no useful purpose to recite the evidence. This court is neither qualified nor permitted to retry the case on its merits, and it is sufficient to say the findings and the judgment were well sustained by evidence.

Another ground of the motion for a new trial was, that the findings and judgment of the district court were induced by passion and prejudice. This ground of the motion was without semblance of merit.

Other grounds of the motion for a new trial were formal.

The judgment of the district court is affirmed.