Moser v. Moser , 82 S.D. 149 ( 1966 )

GILCHRIST, Circuit Judge.

The plaintiff, Mearl Allen Moser, commenced action for divorce on January 16, 1963. Defendant, June Faye Moser, filed an answer, counterclaim and cross complaint and the trial of the case resulted in judgment in favor of the defendant and granting to her the custody of the minor child, Melody Moser, born April 13, 1961, and reserving to the plaintiff the right of visitation which right of visitation was in accordance with an agreement entered into between the parties. This agreement is in writing and is part of the property settlement made between the parties and approved by the court. The right of visitation granted to the plaintiff the right to have the child between the hours of 1:30 p. m. and 8:00 o'clock p. m. on Saturdays at Java, South Dakota and under such agreement and judgment the defendant between the hours of 1:30 and 2:00 o'clock p. m. on Saturdays will deliver the child into the possession of the plaintiff at the property line at the home of Arthur F. Bieber, defendant's father, at Java, South Dakota, and plaintiff is required to be present and accept said child and at the end of the visitation period and at 8:00 o'clock p. ra-the plaintiff shall return said child to the same property line and the defendant shall be present to accept the return of said child or have some third person delegated to accept said child.

On April 14, 1964, defendant made application to the trial court for an order modifying the judgment and decree of divorce and alleging that she believed from information received from the minor child that the plaintiff had sexually molested the child during visitations and praying that the visitations of plaintiff be terminated until such time as the fitness of plaintiff to have and exercise rights of visitation shall be established and determined. The order to show cause on such application directed the plaintiff to show cause why the judgment and decree of divorce entered herein on the 11th day of March 1963 should not be amended and modified to exclude said plaintiff from further visitations of the minor child of the parties hereto and such other and further orders as are appropriate in the premises.

The defendant's application was heard and oral testimony was permitted. The court refused to allow the child to testify but allowed the defendant to testify as to what she claimed the minor daughter stated to her. The court entered an order, filed June 30, 1964, that the application of the defendant be denied and found that there was no evidence of sexual molestation of the child by any person; that the defendant failed to follow the previous order of the court allowing the plaintiff certain rights of visitation; that special and exceptional circumstances are presented and that it is for the best interest and welfare of the child that the custody of the child, Melody Moser, should be divided between the parents, Mearl Allen Moser and June Moser, and providing that the decree of divorce dated March 11, 1963, and all subsequent orders as to same relating to the custody and visitation of the child by the parents be amended or modified so there is divided custody of the child, Melody Moser, between the parents, the plaintiff and the defendant herein, and provided that the plaintiff have the custody of the child, Melody Moser, at the home of his parents, Mr. and Mrs. Reinhold Moser, at Java, South Dakota, commencing on the 1st day of July 1964, and continuing to the 1st day of January 1965, and that defendant, June Moser, surrender the child, Melody Moser, and all of her clothing to the plaintiff, Mearl Allen Moser, on July 1, 1964, that on the 1st day of January 1965, the plaintiff Mearl Allen Moser, shall surrender the custody of the child, Melody Moser, and all of her clothing to June Moser; that thereafter the plaintiff, Mearl Allen Moser, shall have custody of the child and all of her clothing during the summer months of June, July and August of each year and the defendant shall have the custody of the child and all of her clothing the remaining nine (9) months of each year until further order of this court.

The defendant appeals from the order and contends,

1. That the court abused its discretion in making a substantial modification in the provisions of the judgment and decree of divorce pertaining to the custody of the child.

2. That the court abused its discretion in ruling as a matter of law that the child in question was incompetent as a witness and in failing to conduct an examination for the purpose of determining competency of said child as a witness.

The court's Memorandum of Decision discloses that the trial court based its decision and order upon the theory that the custody of child by the defendant with right of visitation by the plaintiff at a certain time and place each week has not proven to be for the best interest of the child and holds that divided custody may be most beneficial to the child. The record shows that the terms and conditions of the judgment and decree were not fulfilled and carried out by the defendant which caused various court hearings and citations. The court did not find and the record does not show that there was a change of circumstances since the judgment was entered and this appeal raises the legal question as to whether the court could legally modify the judgment and decree entered in the case without a change of circumstances as to the parties involved.

In the case of Application of Habeck, 75 S.D. 535, 69 N.W.2d 353, which decision follows the case of Matthews v. Matthews, 71 S.D. 115, 22 N.W.2d 27, the court said:

"It is well settled, however, that after a court has heard evidence with reference to the custody of minor children and ruled upon the question the jurisdiction of the court cannot again be invoked to inquire into the same or other facts existing at the time or prior to the former decree. The rule is that there must be a change of circumstances arising after entry of the former decree to justify a modification."

This is also the general rule and followed in most of the state courts and the holding is that the change must be substantial. 27B C.J.S. Divorce § 317(2); 24 Am.Jur.2d, Divorce and Separation, § 819. This court in Application of Heintz on Behalf of Trembly, 78 S.D. 188, 99 N.W.2d 794, adhered lo this principle when the original custody order was based on a stipulation of the parties.

In view of the fact that the court failed to find and the record in this case fails to show a substantial change of circumstances arising after the entry of the decree we hold that the court was without authority to modify the judgment and decree and enter a judgment for the divided custody of the minor child.

Appellant contends that the court, abused its discretion in ruling that the child was incompetent to testify as a witness. The record discloses that the child was present in the courtroom and the court had an opportunity to observe the child, that the child was two years and nine months of age and her testimony would be as to matters that are alleged to have occurred four or five months prior to the hearing.

There is no arbitrary age which prohibits a child from testifying as a witness. The witness should have sufficient mental capacity to observe, recollect and communicate and a sense of moral responsibility.

Whether a child of tender years is a competent witness is within the discretionary judgment of the trial court and will not be disturbed unless there is shown to be an abuse of such discretion. Here the child was less than three years of age and the court had an opportunity to observe the child during the hearing and could determine her competency as a witness. We find that there was no abuse of discretion in this case. State v. Lutheran, 76 S.D. 561, 82 N.W.2d 507; State v. Reddington, 7 S.D. 368, 64 N.W. 170; State v. Oliver, 78 N.D. 398, 49 N.W.2d 564; Linder v. State, 156 Neb. 504, 56 N.W.2d 734.

The order and judgment of the trial court are reversed.

RENTTO, P. J„ and ROBERTS and BIEGELMEIER, JJ„ concur. HANSON, J„ dissents. GILCHRIST, Circuit Judge, sitting for HOMEYER, J. disqualified.