Tobler v. Tobler , 78 Idaho 218 ( 1956 )

KEETON, Justice.

The parties will be referred to as they appear in the trial court. Appellant will be referred to as plaintiff and respondent as defendant. Plaintiff and defendant were formerly wife and husband, residents of Hayden Lake, Idaho. Plaintiff was granted a divorce August 27, 1954. Subsequent to the granting of the divorce plaintiff moved from Hayden Lake to Spokane, Washington. Prior to the granting of the divorce an agreement dated August 25, 1954 was entered into between the parties in which it was agreed that plaintiff should have the custody of three minor children the issue of the marriage, namely, Mary Irene Tobler, Barbara Jane Tobler and Michelle Tobler, subject to reasonable visitation rights given defendant. By the terms of the decree the care, control and custody of the children were awarded pursuant to the stipulation. On February 23, 1955, defendant petitioned the court for a modification of the decree, and for reasons alleged prayed:

“That the care, control and custody of Mary Irene Tobler be decreed to her father, * * *

that the term “reasonable visitation” be defined; that the other two children in the custody of the plaintiff be allowed to visit him "for such periods out of each month as the Court may feel to be reasonable and just under the circumstances.”

The petition was supported by the affidavit of the child Mary Irene in which she set forth numerous reasons why she desired to be awarded to the custody of defendant; also affidavit of the present wife of defendant in which, among other things, she alleged her willingness to take the child Mary Irene into the home of herself and defendant and care for her.

An answer was filed to the petition for modification in which numerous reasons were alleged as to why petition should not be granted. Trial on the issues was had, testimony and other evidence submitted, and the trial court by order modified the decree formerly entered, awarded the care, control and custody of the minor Mary Irene Tobler to defendant; defined the term “reasonable visitation” and fixed certain periods in which the two minor children, Barbara Jane and Michelle, should be permitted to be in the custody of defendant, subject to the condition that transportation expenses be paid by him. From the order so modifying the decree plaintiff appealed^

The assignments of error, although separately stated, all relate to two basic questions: First, did the trial judge abuse his discretion in entering the order of modification and awarding the custody of the child Mary Irene to respondent? Second, did the court err in defining the term “reasonable visitation” and fixing times when the other two children, Barbara Jane and Michelle, would be permitted to visit him or be in his custody?

The child Mary Irene was born February 21, 1941. At the time of the petition for modification she was fourteen years of age, and is now past fifteen. By an affidavit and in a private conversation with the trial judge she expressed a decided preference to be awarded to defendant. Subsequent to the granting of the divorce defendant remarried and has a home at Hayden Lake where he is engaged in business, and testimony discloses that he has a suitable home and is financially able to care for and raise the child Mary Irene. Testimony also discloses that Mary Irene was much attached to her father; that she was unhappy and emotionally upset while in the custody of the mother. The trial court found:

“that the defendant is now able to provide a suitable and proper home for his said daughter, Mary Irene Tobler, and that under the circumstances disclosed to the Court both by the child personally and by the evidence presented at the said hearing it is for the best interest and welfare of the said Mary Irene Tobler that her care, control and custody be granted to the Defendant.”

In an attack on said finding, plaintiff cites numerous authorities in which this and other courts have held that things being equal children of tender years, particularly girls, should be awarded to the custody of the mother. The general rule so stated is well recognized and established. See Richardson v. Richardson, 72 Idaho 19, 236 P.2d 718, 719, and cases therein cited; Harmon v. Harmon, 264 Ky. 315, 94 S.W.2d 670.

Sufficient answer to this contention is that Mary Irene is not a minor child of tender years, within the meaning of the decisions awarding children to the custody of the mother.

In Schiermeister v. Schiermeister, 199 Or. 391, 261 P.2d 677, the court held that decisions awarding children to the custody of the mother where they were of tender years have no application to a child of the age of fifteen.

The question of custody of a minor child is initially committed to the sound legal discretion of the trial court and such court’s determination will not be interfered with in the absence of a showing of an abuse of discretion. Wilson v. Wilson, 77 Idaho 325, 291 P.2d 1113. The trial judge did not abuse his discretion in awarding the custody of the child Mary Irene to the father, and there was sufficient showing of the change of conditions that would be beneficial to the child and in furtherance of her welfare and best interest to warrant the modification made by the trial judge.

While the wish of the child to be awarded to one of the parents where the parents are separated and both parties are shown to be suitable persons to have the custody is not finally determinative of the issues, it is a proper matter for a trial court to consider with other evidence in determining the child’s best interest.

Primarily the welfare and best interest of a child or children is the sole matter with which the court is concerned and their custody is of supreme importance regardless of the claims or personal desires of the parents, and the wishes of the child in such cases must yield to the determination of what is best for such child’s ultimate good. Warnecke v. Warnecke, 28 Wash.2d 259, 182 P.2d 699; Hurner v. Hurner, 179 Or. 349, 170 P.2d 720.

The court in the order of modification fixed certain visiting periods in which the children, Barbara Jane and Michelle, could be with defendant, and further provided that defendant should have Barbara Jane for a period of six weeks every summer, and Michelle for a like period when she reaches the age of six years.

Additionally the court defined the term “reasonable visitation” as follows:

“That the term reasonable visitation shall be and the same hereby is further amended to provide that during the odd numbered years such as 1955, 1957, etc., the Defendant shall be entitled to have the said minor children visit him in his home on Easter, Thanksgiving and Christmas Eve and the Plaintiff shall have all of the said children, including Mary Irene Tobler on Christmas Day. During the even numbered years such as 1956, 1958, etc., the Plaintiff shall be entitled to have all of the children, including Mary Irene Tobler, * * * on Easter, Thanksgiving and Christmas Eve, and the Defendant have the said children for Christmas Day.”

This order is attacked by plaintiff as not being within the issues and as an abuse of discretion.

The petition for modification specifically asked for the fixing of visiting periods for the children, Barbara Jane and Michelle, and plaintiff in her testimony stated that the parties had been unable to agree on visiting periods and “I do feel that regular visits would be better * * *. For the benefit of the youngsters I think it should be regulated.” Hence there is no merit to the contention that the determination made by the trial judge is not within the issues.

If the parents could not agree on visitation periods the court had jurisdiction to fix such periods and define the term reasonable visitation. Any suitable parent should be given the right to see her or his child or children and to have such child or ■children with her or him at reasonable times and places. Wilson v. Wilson, 73 Idaho 326, 252 P.2d 197.

We are of the opinion that the six-week visiting periods provided for in the summer months should be reduced to thirty ■days. The trial judge will so modify the order.

The order appealed from as so modified is .affirmed. No costs allowed.

TAYLOR, C. J., and ANDERSON, J., •concur.