Gorsuch v. Gorsuch

Paine, J.

The defendant, Jess Gorsuch, appeals from the decree rendered upon his second petition for the modification of a divorce decree with respect to the custody of his minor son.

The plaintiff, Cora Gorsuch, filed her petition for divorce on the ground of cruelty November 18, 1936, alleging that her husband had deserted her and her baby, Norman Paul, born July 3, 1936. A divorce was granted the plaintiff December 23, 1936, and she was awarded the custody of the child, with $10 a month support money.

On February 8, 1941, the defendant filed a petition alleging that plaintiff was an unfit person to have the custody of said child, and asked the court to modify the decree as to the custody of the boy, setting up that on May 11, 1939, he had been married and desired now to be given the sole custody of his son. On March 26, 1941, he filed a supplemental petition against Glen Suddarth and Kathryn Suddarth, who then had the custody of the child, and they filed answer and denied that defendant was a fit or suitable person to have custody of the child. Many witnesses testified at the trial, and the court awarded the custody of the child to the defendant, Jess Gorsuch. From this decree, the plaintiff, Cora Gorsuch, and the interveners, Glen Suddarth and Kathryn Suddarth, appealed to this court.

The first opinion of this court in this case was released July 9, 1943, and appears in 143 Neb. 572, 10 N. W. 2d 466. It found that neither the plaintiff nor the defendant should have the custody of the boy, but his custody was granted to Mr. and Mrs. Suddarth, who were the only parents the boy had known, and they had provided him-with a good home and with proper educational and religious surroundings.

Upon motion and brief for rehearing, a supplemental opinion was entered by this court under date of October 25, 1943, found in 143 Neb. 578, 11 N. W. 2d 456, in which this court decided that, from the evidence contained in the bill of exceptions, neither the father nor' the mother was a fit, proper, or suitable person to have the custody of Norman Paul Gorsuch, the child involved.'

On April 5, 1945, Jess Gorsuch filed a petition for the modification of the decree insofar as it awarded the care and custody of the minor child to the Suddarths, and prayed to award same to the defendant.

On May 22, 1945, Jess Gorsuch filed a supplemental petition, setting forth that Glen .Suddarth had died and that Kathryn Suddarth is unable to make a proper or suitable home for the minor child, and that she will be dominated and controlled in its care and custody by-Cora Gorsuch.

On June 2, 1945, Kathryn Suddarth filed an answer, in which she said that, notwithstanding the death of her husband, she was fully capable, both financially and otherwise, to continue to care for, rear and educate said child as if he were her own, and that his religious and secular education and general welfare have not changed by the death of her husband. She further alleged that she had cared for the child several months prior to September 6, 1937, while plaintiff was employed at housework; that since he was two and a half years old she had had him continuously, had provided the major portion of his support, carefully preserved his health, clothed him properly, and expended considerable sums of money in so doing; and that a very deep and abiding attachment had grown up between the child and herself. She prayed that the petition of Jess Gorsuch be dismissed and it be decreed that said child should remain in her custody.

On July 20, 1945, Cora Gorsuch filed her answer. She alleged that the amount contributed by Jess Gorsuch was entirely inadequate for the care and support of the child, because of the rise in prices of food, clothing, and necessaries of life; that she was gainfully employed and was willing to contribute a reasonable sum to assist in the expense of caring for her son in the Suddarth home; that she was required to spend twelve hours each day working, and unable at present to provide him a home, but that when she is able to provide a home for him she intends to ask the court for the care, custody and control of her child; that she objects to the custody and control of the child being given to the defendant, Jess Gorsuch, for the reason that he is not a fit and suitable person to have the care, control, and custody of the child, and has been so adjudged by the court; and prayed that the custody of Norman Paul be left with Kathryn Suddarth.

On July 20, 1945, Jess Gorsuch filed a reply, denying the facts set out in the answers of Cora Gorsuch and Kathryn Suddarth.

Trial was had in the district court at Gering on July 20 and 21, 1945. All parties appeared in court with counsel. At the close of the two days’ trial, in which the evidence of many witnesses was taken, the case was taken under advisement.

On October 19, 1945, written briefs having been submitted, it was ordered that a journal entry be drawn as per the oral instructions given by the court.

On October 22, 1945, Jess Gorsuch filed motion for new trial, in which he set up that the judgment and decree was contrary to the evidence, contrary to the law, and not supported by the weight of the evidence; that the court erred in adjudging that the best interests of the minor child, Norman Paul, would be served by dividing his custody between his father and Kathryn Suddarth; and that the court erred in denying the custody of the' child to Jess Gorsuch for nine months of the year and awarding his custody to a person who was a paid custodian.

On January 19, 1946, a decree was entered, in which the court stated: “That the record of the testimony in the former proceedings brought by the defendant, Jess Gorsuch, for modification of the original decree herein was offered in evidence in this proceeding, the same being the record in Case #31610 of the Nebraska Supreme Court, the opinion of which is reported' in 143 Neb. 572, 578, and the Court finds from a careful examination of said record and of the testimony adduced in this proceeding, that the defendant, Jess Gorsuch, has failed to show that there has been any material change in the circumstances of the parties touching upon their respective suitability and fitness to have the custody of the said Norman Paul Gorsuch. The court, therefore, finds that the judgment of the Supreme Court in Case #31610 that neither the father or the mother is a fit, proper and suitable person to have the custody of Norman Paul Gorsuch, is binding upon this Court. * * * and finds that the best interests of said child require that he remain in the custody of the impleaded defendant, Kathryn Suddarth, until the further order of the court, * * * .”

The court further found .that the incomes of both plaintiff, Cora Gorsuch, and Jess Gorsuch, defendant, had materially increased since the trial of the first petition; that the support and care of said child required the sum of at least $30 a month; and it was ordered that the plaintiff, Cora Gorsuch, and the defendant, Jess Gorsuch, should each pay to the clerk of the court the sum of $15 a month for the support of the child from September to May of each year, commencing November 1, 1945, and continuing until further order of the court.

The court found that the death of Glen Suddarth was not such a change in the circumstances as to justify a modification of the former decree as to the custody of the child. It further found that the plaintiff, Cora Gorsuch, and the defendant, Jess Gorsuch, were each entitled to visit said child at the home of Kathryn Suddarth at reasonable times; that the defendant, Jess Gorsuch, was entitled to have the child visit him at his home at the Thanksgiving and Easter vacations and the long summer vacation of each year; that he should call at the home of Kathryn Suddarth and get said child and return said child at the conclusion of each vacation period; and that Kathryn Suddarth should have the right to visit the child at the home of Jess Gorsuch at reasonable -times during such vacation periods.

A journal entry was entered January 19, 1948, in which the court announced that it was agreed by the attorneys that the motion for new trial filed by Jess Gorsuch prior to the journalizing of the judgment should stand as traversing the judgment finally entered January 19, 1946. From this decree Jess Gorsuch, defendant, appealed to this court.

To the decree entered January 19, 1946, Jess Gorsuch, defendant and appellant, has set out ten assignments of error. However, an examination of these alleged errors discloses that not all of them were called to the attention of the trial court in the motion for a new trial, and therefore will not be taken up in this opinion. We will consider only those set out heretofore in the motion for a new trial.

We will now examine the evidence as to the foster mother, Kathryn Suddarth, who has raised this boy in her home since he was a small child. She testified that he was in the fourth grade in school, and attended Sunday School; that she had never let the boy’s mother, the plaintiff, Cora Gorsuch, take the boy; that she had not taken him to Cora’s apartment in Omaha, but had taken him to her sister’s in Omaha twice, but did not stay there overnight; and that they had telephoned to Cora and she saw him on those two occasions. Two or three times Cora had come to Rising City on Saturday night, stayed for the week end to see her boy, and had gone back to Omaha on Sunday evening. Once Cora was there when Jess was there, which was in January 1944.

Mrs. Suddarth testified that her husband, Glen, died May 2, 1945; that he left her no real estate, but left a plumbing shop and equipment, which she still owns; that he also left $1,000 of bonds, and about $2,000 in the bank; and that she also had about $300 of her own savings. She also testified that he left an automobile and furniture, and also left a blacksmith shop, but she sold that for $100. She testified that if the boy was left with her she could, if necessary, do washing and ironing for a living and keep him with her. She stated that the house she has lived in in Rising City for the last five years belongs to the Wallace estate; that Ervin Wallace was Cora Gorsuch’s father, and the Wallaces have permitted the Suddarths to live in said house for five years without paying any rent; that she had a very large garden connected with the house, where she raised enough potatoes and garden stuff to run them through the winter, and also raised a lot of chickens; that the boy, Norman, plays with three girls across the street and with two boys a block from home; that he never leaves without asking and telling her where he is going; that he has a dog to play with; that she had. at her own expense bought clothing, including winter clothes, snow suits, pants and overalls, and heavy underwear, a bicycle, and also gave Norman spending money, and in addition bought him books to read; that he regularly attends the Lutheran Church and Sunday School, but she has never had him baptized in the Lutheran faith.

Cora Gorsuch testified as follows: “Q. Have you observed Mrs. Suddarth’s conduct in connection with the child? A. Well, she is very kind and affectionate towards him. Q. From your observation is the child contented?

A. Yes, he is.”

Mrs. Suddarth testified that Cora gives her money for Norman and had sent her money through the'mail for that purpose, but that the father had made no contribution of money or clothing to the boy in the last two years, except paying the $10 a month as ordered; that he had never written to the boy, and had only written to her once when he asked if Norman could come out there to the ranch for Christmas, and she answered that there was no Christmas vacation.

We do not believe the assignments of error should be sustained in any respect. On the other hand, it is our view that the trial court was not justified in the liberal provisions of the decree entered in favor of the defendant.

The law as to the parents’ rights in such a situation as the facts show in the case at bar appears to be: “Since they are not absolute rights, but must yield to the best interests of the child, the natural rights of a parent to the custody and control of his infant child are subject to the power of the state, and may be restricted and regulated by appropriate legislative or judicial action. * * * The state’s power in this respect is based on its position as parens patriae, on the right of the child, as citizen and ward, to its protection, as well as upon the state’s interest in its own perpetuation.” 39 Am. Jur., Parent and Child, § 15, p. 602.

“The welfare of an infant is paramount to the wishes of the parent, where it has formed a proper and natural attachment for another person who has long stood in the relation of a parent with the parent’s consent.” In re Burdick, 91 Neb. 639, 136 N. W. 988. See, also, 17 Am. Jur., Divorce and Separation, § 683, p. 517.

“The welfare of the child being the one question of primary consideration to which all others must yield, the court must patiently examine the evidence in the light of the age of the child, its past and future. The question involves the study of the proposed home itself, and its entire surroundings, the temporal welfare of the child, as to food, clothing, discipline, and, if of tender years, careful nursing when required, and medical attention.” Kaufmann v. Kaufmann, 140 Neb. 299, 299 N. W. 617.

Appellant cites us to section 38-107, R. S. 1943, which states that the father and mother are the natural guardians of their minor children, and if either dies, or is disqualified, or has abandoned the family, the guardianship falls on the other.

We recognize this as the law in Nebraska, but in the case at bar the father absolutely abandoned his little boy for years, the mother turned the baby over to Mrs. Suddarth when it was perhaps eight months old and went to work, and for many years neither saw the little lad except at very infrequent intervals. Both parents appear now to have developed quite an interest in their child, and each is now required by the decree to contribute monthly the same amount to his support.

The evidence discloses that the mother works for long hours daily as a beauty operator in Omaha, and the father is a ranch hand in western Nebraska. This boy has been brought up in a small town, under very quiet and pleasant surroundings, during all these years by his foster mother, Mrs. Suddarth, who is, since the death of Mr. Suddarth, the only parent he has ever known, and her home is the only home he has ever known. We do not believe that it would be for the best interests of this little lad to be taken out to a ranch in western Nebraska for either the long or short vacation periods.

It is our opinion that both the plaintiff, Cora Gorsuch, and the defendant, Jess Gorsuch, should be allowed to visit their boy, Norman Paul, at reasonable times and places at Rising City, with the privilege of visiting with him in the absence of Mrs. Suddarth.

The trial court provided for the payment of support money of $15 a month from the plaintiff and the same amount from the defendant for only nine months in each year. These payments, under our modification of the decree as entered, should be made monthly for the entire twelve months of each year.

With these various changes, all as set out herein, the decree entered by the trial court is affirmed.

Affirmed as modified.