Stanfield v. Stanfield , 22 Okla. 574 ( 1908 )

The exceptions taken to this judgment by the appellant cover substantially the following grounds: First, that the trial court erred in awarding to appellee herein, upon his petition and evidence, the care and custody of the two minor children; second, that the court erred in rendering judgment relieving defendant from all obligations to pay alimony; third, that the court erred in holding plaintiff in contempt by reason of her absenting herself with the children from its jurisdiction. Generally speaking, the objections taken by the plaintiff to this judgment are that the court was not authorized by the pleading or evidence, to set aside the decree that had been rendered in the case, nor was it authorized to punish, as it did, plaintiff for contempt. These two general subdivisions in our judgment will cover the objections taken to this judgment.

From the defendant's pleading it will be noticed that he complains of the conduct of his former wife, averring that she had denied him the right to see his children, had informed his father that defendant would not furnish them with clothing, was incurring expenses, wilfully and needlessly, for the said children; that she had made their and her own home with her mother, who with her brother had refused to pay a note that they induced him to make with them in the sum of $300; that the mother was not a fit person to properly care for the said children; that on March 22, 1906, defendant was married to Miss Mary Louise Smith at the city of Memphis, Tenn.; and that plaintiff had caused trouble between defendant and his new wife, which had made his wife sick and dethroned her reason, and as a direct result of her misconduct, defendant had been humiliated and suffered misery, and as a result at one time lost 25 pounds of weight in 12 days; that since the decree of divorce she had intentionally interfered with the business of defendant, thereby causing him loss of property.

On the hearing of the case to support his claim to the care and custody of the children as against his wife, and on which reliance is placed to set aside the former decree granting their care and custody to the plaintiff, he sought to show three things: That his wife refused to permit him to see them or visit them, in accordance with the terms of the decree, that she refused to permit them to visit him, and that she had not supplied them with a home suitable to their needs. In support of the first proposition he testifies that he had permitted plaintiff to keep a cow which belonged to him, and that, on its getting out on one occasion, and on his requesting plaintiff to have a man secure it, for which he would pay, she flew into a rage and became abusive of him, and stated that neither of the children would see him again, or have anything to do with him, and that since that time she had not allowed the children to speak to him or had he been allowed to see them. He does not testify that prior to that time he had made any effort to see them, nor that since that time he had made any effort to see them further than will be presently noticed. The decree gave him the right to visit the children at such reasonable times as would be agreeable to the plaintiff, and to have the children visit him. On this it seems to us, if he desired a change of the custody of these children because of his being denied the right of visiting them, he certainly ought to show the time, or times, when he had made an effort to visit them which was unsuccessful through the fault of plaintiff. In the absence of such showing of fact, no judgment denying the mother their possession for this reason could be sustained; neither does he show in any particular wherein these children were denied the right or privilege of visiting him. It is true that he reads in evidence a letter, which he wrote to his oldest son some 15 months after the divorce was granted, in which he asked him to bring his younger brother and come and see him, and this stands alone up to that time as the sole and only invitation in this record of this father to his sons to visit him. Thereafter, and between the time of the writing of that letter and the giving of his evidence, a period of a little over a month, he had a conversation with this same son, in which he testified that he (the son) was apparently offish; that he asked him if he was mad at his father, to which the boy replied that he was. He then asked him what he was mad at him for, and he answered that it was due to the manner in which he had treated his mother. He then asked him if he would come down and see him on the morrow, and bring his younger brother with him, which he agreed to do, but did not; that prior to this he had displayed affection for his father. It will be noted that the mother is in no way whatever connected with this testimony or conduct of this child, or these children. This conversation took place probably in January or February, 1907. But the mother cannot be held responsible for this feeling, with no evidence whatever connecting her with it. From his own evidence the condition seems to have been brought about by his, and not the mother's conduct. He states he never applied to the court in order to enforce either the right to visit or otherwise see the children.

Nor can we consent that the evidence in this case shows that the mother has not given the children a good home. She lived with her mother, Mrs. Hughes, who defendant says is a very excellent moral woman, and who had formerly lived at defendant's house, and who he states had looked after his own, and the wearing apparel of the children while there. When asked as to whether or not the children had a good home, he testified: "I have no knowledge, for the reason that I am not permitted to see them, have stayed away at the special instance and request of the mother of these children." Hence there is no evidence that the home provided by the mother for the children is not such as it should be. The defendant himself testifies that he desires to have the children awarded to him, not that he has any home to which he can take them, as he and his second wife have separated, but that he desired to send them to a farm in Missouri to be kept by his aged father and his (the father's) recently married wife.

Certainly it occurs to us, from a close reading of this evidence, that there is no testimony whatever to support either of the propositions that the father could not have seen these children had he really desired to do so, or that they would not have been permitted to visit him had he really manifested an earnest desire to have them do so, or that they were not supplied with a good home under the provisions made for them by their mother. He testifies to a number of general conclusions in reference to the children and the home provided by the mother. He supports his second motion by the affidavits of a number of people, who swear to the conclusion that the mother is incompetent to have the care, custody, and control of the children, and that the best interests of the children require that their custody and control be given to their father, and other conclusions of similar character, but no facts are stated, nor is it shown, that these witnesses could not have been procured to testify on the hearing of the cause had they been desired.

It is a rule laid down by practically all of the courts that, where there has been no change in the condition of affairs from what they were at the time of the rendition of the decree making the award of the children, a court will not arbitrarily take them from one parent or from one guardian, and deliver them into the hands of another parent or guardian. Especially will this be true where no material facts are disclosed, at the time the application is made, which were unknown, or which could not have been readily ascertained, at the time the decree was rendered. Such appears to be the general rule applicable in such cases, and is thus stated:

"A modification of the decree awarding custody of the children will not be made unless it be shown that the circumstances of the parties have changed, or unless material facts are disclosed which, at the time the decree was rendered, were unknown and could not have been ascertained with reasonable diligence." (14 Cyc. p. 811.)

The reason for such a ruling is apparent on its face. If the decree is not in accordance with good conscience and equity and the best interests of the child when made, then application should be made for its review at the time in the court where taken; and, on its refusal to reverse its decree, then appeal should be resorted to, but an application at a subsequent term of the same or another court for the modification of the decree cannot be used to take the place of an appeal. Cole v. Cole,142 Ill. 19, 31 N.E. 109, 19 L. R. A. 811, 34 Am. St. Rep. 56;Daugherty v. Daugherty, 71 Ill. App. 301; Warren v. Warren, 101 Ill. App.? 308.

It appears that on February 13, 1907, the day to which this cause had been adjourned, the plaintiff was unable or did not attend the court, whereupon the court adjourned until the following morning at 9:30 o'clock, for the purpose of allowing plaintiff to attend, and give her testimony. At the time to which the court was adjourned attorneys for plaintiff appeared, and advised the court that plaintiff had taken the two children and left the jurisdiction of the court, and that they were not advised as to her intention about testifying in the case, whereupon the court rendered its judgment, basing it "upon the evidence, heretofore submitted upon the part of plaintiff and defendant, upon the motion of the defendant for custody of the children and modification of the order as to alimony, and upon the response of plaintiff, and the default of the plaintiff in failing further to appear at the time set for the giving of her testimony and her reported flight with said children." Now, under the exceptions taken, the question arises, Would the court under these facts be exercising a reasonable judicial discretion in punishing the plaintiff for her contempt, if such it were, by taking from her the custody of these children and placing it with the father? In our judgment it would not. In the first place, the decree which is modified made no specific requirement that the plaintiff should keep the children within the jurisdiction of the court, nor that she should remain there herself, so that by her absenting herself with the children she violated none of the specific terms thereof, and no citation of any kind had been served on her. There was no evidence showing that any controlling condition, which existed at the time the same was entered entitling her to the custody of the children, had become changed or modified by her subsequent conduct, and where there is no substantial reason affecting the best interests and the welfare of the children for the change, certainly a court cannot arbitrarily make it to punish their custodian for either directly or impliedly violating its orders. The custody of the child ought not to be made the medium through which its parent is punished. Its welfare ought to be, and is, of paramount importance. The conduct of its parent towards the court ought to be considered as of absolutely no weight in the determination by that court in whom it shall place the custody of the child. The defendant in his testimony specifically confesses that he has no home to which he may take these children, and testifies that it is his deliberate purpose, on getting custody of them, to remove them from the jurisdiction of the court and to keep them at his father's home in the state of Missouri. Under these circumstances in our judgment there is nothing for this court to do but to set aside that portion of the modified or new decree.

On the question of whether or not it was the duty or was within the power of the court to relieve the defendant of the payment of alimony decreed plaintiff, we will say that the same rule obtains as is noted above. In the absence of a showing of a change of the financial condition of the party charged, or the remarriage, or some other similar and controlling circumstances occurring in the life of the party benefited, the decree allowing alimony ought not be rescinded or annulled. After the divorce the parties go into the world as strangers to each other, and generally even the adultery of the wife, except possibly under special conditions not involved in this case, will not relieve the husband of the payment of alimony in accordance with the decree. Keezer on Marriage and Divorce, § 320; Cole v. Cole, 35 Ill. App.? 544. See, also, Cole v. Cole, 142 Ill. 19, 31 N.E. 109, 19 L. R. A. 811, 34 Am. St. Rep. 56; 14 Cyc. p. 788.

Nor generally had the court jurisdiction, in the absence of fraud or mistake, to change or modify the alimony decreed for the aggression of the husband, which is adjudged to the wife in accordance with an agreement of the parties entered into previous to such decree. Law v. Law, 64 Ohio St. 369, 60 N.E. 560; Henderson v. Henderson, 37 Or. 141, 60 P. 597, 61 P. 136, 48 L. R. A. 766, 82 Am. St. Rep. 741; Storey v. Storey,125 Ill. 608, 18 N.E. 329, 1 L. R. A. 320, 8 Am. St. Rep. 417. It will be observed that the contract entered into and the decree contained the provision that the defendant shall pay to the plaintiff as alimony $150 per month until such time as she shall remarry, and that in addition thereto that he shall bear the expense incident to any sickness, if any should arise; "that in the event of accumulation of greater wealth or property interest upon the part of the defendant herein, the said sum of alimony herein provided may be increased by the court in keeping with the financial condition of the defendant, provided the plaintiff remain single and unmarried." The plaintiff has remained single and unmarried, but the defendant contends that it was his understanding, at the time the contract was entered into, that she was to become married shortly after her divorce, and that by her failing to do so he was entitled to have the decree modified and her denied alimony. When asked as to what the understanding was in reference to the time the alimony was to continue, he said, "My recollection is that there was no specified length of time, further than that she was going to be married," and that the $150 a month was to last until that time but that he understood that she would marry not later than six months, and that it was not written in the contract to save plaintiff from humiliation. At the time of the hearing, he still occupied the position of United States attorney for the Northern District of Indian Territory, and was continuing to draw his salary of $4,000 per year, and in our judgment neither the facts testified to nor the power of of the court to punish the plaintiff for contempt justified or warranted the setting aside of the decree made upon the contract granting plaintiff alimony.

The cause is accordingly reversed and remanded to the district court of Craig county, with instructions to set aside the decree of the court modifying the decree rendered in the divorce suit between these parties, reinstate said decree, and take such further action in the premises, in accordance with this opinion, as the facts at this time warrant.

All the Justices concur.