Bath v. Bath

35 N.W.2d 509, 150 Neb. 591, 1949 Neb. LEXIS 6

• Court: Nebraska Supreme Court
• Decided: January 10, 1949
• Docket: No. 32456
• Status: Published

Opinions

Messmore, J.

This is an action brought by Herman Bath to modify a decree of divorce obtained by his wife Dorothy Bath, to the extent of awarding him the custody of two minor sons, the issue of such marriage.

The parties were married in 1937 and immediately after their marriage established a home on a farm belonging to John Bath, the father of Herman Bath. On December 7, 1943, Dorothy Bath, plaintiff, obtained a decree of divorce from Herman Bath on the grounds of extreme cruelty. The defendant did not file an answer. At that time Richard William Bath was four years old and Dennis Eugene Bath was four months old. On December 4, 1943, by stipulation, Dorothy Bath was awarded the absolute custody of the two minor children. The defendant agreed to pay $30 per month for child support, with the right to visit the children. In the divorce decree the trial court ordered that the children should at all times be subject to the jurisdiction of the court, and that the plaintiff should keep the court advised of their whereabouts and not remove the children from the jurisdiction without first filing with the court a statement of her intention to so remove them. In January 1944, after the plaintiff had removed to Bakersfield, California, a notice was filed in the office of the clerk of the district court showing plaintiff’s place of residence.

On January 9, 1948, the defendant filed an application to modify the decree of divorce, setting forth the terms of the decree and charging that the plaintiff had not provided a separate home for the children but that she and her children live with her mother; that since July 1947, he and his present wife have had the care, control, and custody of the minor children; and set forth certain facts upon which he' contends there has been a change in conditions since the granting of the decree of divorce. The plaintiff, by answer and cross-petition, denied the allegations of the application and affirmatively alleged certain facts as to why the custody of the two children should not be granted to the defendant. The facts alleged in the pleadings to support the contentions of the respective parties will be covered in a résumé of the evidence.

On February 17, 1948, after trial, the district court entered a decree awarding the custody of the older son, Richard, to the defendant, and the younger son, Dennis, to the plaintiff, requiring the defendant to thereafter pay $30 per month for the support of Dennis during his minority, and allowing an attorney’s fee. Motions for new trial were filed by both plaintiff and defendant and were overruled. Thereupon the plaintiff gave notice of appeal and moved that a supersedeas bond be fixed. Certain procedure was then had which need not be detailed as to keeping the custody of the children in status quo until this appeal was finally determined. The defendant cross-appealed, contending that the court, in addition to having awarded him the custody of Richard, should have awarded him the custody of Dennis.

The principal and controlling assignment of error contended for by the plaintiff is that the decree of the trial court is not sustained by the evidence and is contrary to law.

For convenience the appellant and cross-appellee will retain title of plaintiff as originally designated, and the appellee and cross-appellant will retain the title of defendant as originally designated.

The defendant is engaged in farming 160 acres of land rented to him by his father who is a farmer living a mile and a quarter from the defendant, and a brother lives about the same distance from the defendant. Defendant has been engaged in farming this land for three or four years. He was married to his present wife July 28, 1946. The farm is well improved, with a six-room remodeled brick house, part of which is insulated, equipped with electricity and bath. The boys occupy an upstairs room that has been insulated for their use. At the time of the trial the boys had lived with their father and his present wife approximately seven months. Richard came to the defendant’s home about the 6th of June, 1947, and Dennis was there at different times up to the first of August, 1947. Both have resided there since that time. Mrs. Harriet Blythe, the maternal grandmother, brought the children from Morro Bay, California, to Kansas City, Missouri. She wrote the defendant and his wife to come there and pick. up Richard, which they did. Upon delivery to his father, Richard was afflicted with a cold, and medicine was furnished to the father to be administered as required. The maternal grandmother remained in Kansas City, according to the defendant’s evidence, to receive treatments for rheumatism. Prior to Thanksgiving the grandmother delivered the children’s winter clothing to the father and returned to Kansas City where she remained until Christmas.

Richard started to school, entering the fourth grade. The school is about a mile and a quarter distant from the defendant’s home. At times ■ he rides a pony to school, sometimes a bicycle which was furnished by his relatives in California, and on cold days is taken to school in an automobile. His grades in school have improved since he started.

Shortly after Richard’s arrival at the defendant’s home he was taken to a physician and later to a specialist to determine whether or not he was afflicted with tuberculosis. The tests were negative.

Defendant testified that at the time of Richard’s arrival he was nervous and in a run-down condition. A local physician diagnosed his difficulty as asthma, and applied tests relating it to house-dust which seemed to be the cause of his condition. He testified that Richard was a nervous child at the time he examined him, did not seem to be stabilized, but improved physically and seemed to be happy in his environment.

The defendant’s present wife took the children with her on shopping trips, and provided special entertainment for them on occasions. The boys regularly attended Sunday school and church, and on occasions visited with numerous relatives of the defendant and his present wife in the immediate vicinity.

Defendant testified further that at the time of the divorce he was unable to provide a home for the children except his parent’s home, and that his mother was aged and not able to take care of the children.

Exhibit No. 1 is a letter dated October 8, 1946, written by the plaintiff to the defendant, the substance of which is that upon her return from Morro Bay where she had seen the children she was quite disturbed in the change she found in Richard, that he “is getting entirely out of hand and doesn’t seem to know what mind means, although a lot of the time he is as good as can be.” Other parts of the letter are a request for 'the defendant to write to Richard, because since the defendant’s remarriage Richard has felt that he has lost the love of his father, and that a letter to the effect that the father still loved him would aid the' situation. The letter shows that she had expended some money for the children’s clothes and had paid doctor bills in their behalf.

It appears that the defendant generally addressed his letters to Richard, and made no inquiry with reference to Dennis. He wrote not to exceed once every two months. Also, from the time the plaintiff moved to California in December 1943, until the two children returned to Nemaha County, Nebraska, in June 1947, the defendant had seen Dennis on one occasion in October 1944. At that time he visited the plaintiff and the children in California, arriving about ten o’clock on a Friday night and remaining until Monday morning. He was with the children except on Saturday night when he took the plaintiff to a show and a dance. On one other occasion, in the summer of 1945, he saw Richard when he returned with his maternal grandmother to Nebraska for a visit.

The defendant testified that Richard had been moved from one school to another in California and that the child had led an unsettled existence from the time the plaintiff moved to California. The plaintiff moved to California in December 1943, and within a month after her arrival, moved to a home at 1812 Orange Street in Bakersfield, and continued to reside there until March 1947, or for approximately three years. Until she moved to that place she stayed with a Mrs. Higgins, a cousin of her mother’s, at 800 Oleander Street. In March 1947 she vacated the Orange Street residence due to an increase in rent which she could not pay, and the children were taken to Mrs. Higgins’ home at Morro Bay. The plaintiff, after disposing of her furniture and in about three weeks, moved to Morro Bay and lived with her children in the home of Mrs. Higgins. She was with the children continually until they returned to Nebraska in June 1947.

With reference to the change in schools, the record shows that Richard attended Lowell School in Bakersfield two years without interruption. The following year he started to school in Morro Bay. By November first it was apparent the apartment Mrs. Higgins was to provide for the plaintiff and her family would not be finished, so Richard returned to Bakersfield and enrolled in the same school he had attended. When the plaintiff moved to Morro Bay, Richard enrolled in school there for the rest of the school year.

Other witnesses testified that the defendant is a person of good habits and character, likewise his present wife; also as to Richard’s regular attendance at school; that both children attended Sunday school and church; and that the' children are provided with a good home. However these witnesses had not been in the home, or if so, had visited there infrequently.

The plaintiff testified that shortly after her divorce from the defendant she went to California with her mother and the two children and as to the different residences she occupied. She obtained employment as a meter reader for a gas and electric company. She usually got her own breakfast, ate where she could at noon, was home in the evening, and generally prepared the evening meal. She read to the children, played with them, put them to bed, and provided for their welfare generally. During plaintiff’s working hours her mother took care of the children, and there is no competent evidence that she is unable to assist the plaintiff in such respect at this time.

The plaintiff further testified that the defendant told her that he did not believe that Dennis was his child, and told her if she remarried that it would be necessary for her husband to adopt the children. He was not desirous of having Dennis visit him in the summertime together with Richard, as it would be too much of a burden on his present wife to take care of both of the children and do her work.

It appears by. correspondence dated April 9, 1946, that the defendant spent about $1,300 in three months, or over $400 per month, and was worried about his finances. This money apparently was spent on parties that he had had on different occasions, the extent of which is not shown. He also admonished the plaintiff to not let the boys develop, a temper like he had which he thought was caused by 'Scoldings and nervousness. At another time the defendant requested the plaintiff to send him $40 to pay for a tonsillectomy for Richard when he was visiting in Nemaha County with his grandmother in the summer of 1945. She did not send the amount, so the operation was not performed. However, the plaintiff had the operation performed in 1946. Defendant made no contribution for the operation and did not make any contributions other than the $30 per month as required by the court in the divorce action.

Plaintiff testified that when she had possession of the children they attended church and Sunday school; that defendant requested Richard to come and visit him in Nebraska, but did not request that Dennis come. She informed him that she did not want the children separated and if one went on a visit the other should go also. She further testified that when she came to Nebraska and went in search of Richard, accompanied by the sheriff, she was unable to find him at the defendant’s home or his grandparent’s home. She went to the schoolhouse, and at that time the defendant’s brother was helping Richard over a barbed-wire fence, and he ran towards his uncle’s home. She called to him and he acted as if he were afraid. She searched but was unable to find him. She further testified that the children were to stay with their father just for the summer; and the defendant testified that he and his wife were under the impression that the boys were there just for the summer.

The plaintiff further testified that during the last month the children were with her she quit her employment and spent the time with them, taking them on picnics, on walks, and occasionally to shows, and entertaining them generally. After the children left for Nebraska she moved different places, had different kinds of employment, and at the time of returning to Nebraska had' employment in a nursing capacity at the Bakersfield hospital; that Richard was not unruly, he was like any other child who got out of hand occasionally. There is nothing in the record that discloses that he was unruly except as heretofore pointed out. An examination of the report cards appearing in the record shows Richard’s regular attendance; that he is a conscientious, intelligent, well-behaved child; and that his grades are average or better and apparently as good in one school as in another.

Mrs. Higgins testified that she graduated from teacher’s college in 1910 and went to California where she taught school; that she adopted three children and raised them, the youngest one being now 21 years old; that she engaged in the wholesale produce business after the death of her first husband and disposed of this business to her present husband and a son in 1931; that they have built a residence in Morro Bay recently and an upstairs apartment for the use of the plaintiff and her children, with a private entrance, the children being privileged to at all times have the run of the entire house. The upstairs apartment is modern, newly and completely furnished, with a bath, kitchen and dining room, large closets, large living room and large bedroom. This witness helped raise the plaintiff and had custody of her for three years. She testified that the plaintiff is devoted to her children, to their health and to see that they have proper food; that they have well-balanced meals; that Dennis was always healthy and Richard had his tonsils out and had pneumonia once, which was about the extent of his illness, and that he did not have asthma.

Reference is made to correspondence by this witness with the defendant and his wife as to the adequacy of their home for Richard and her appraisal of the situation concerning the custody of the children. This correspondence is offered for impeachment and, at most, goes to her credibility as a witness, which has been considered by the court in such respect.

The foregoing is substantially the competent and relevant evidence shown by the record.

Section 42-312, R. S. 1943, with reference to changing the custody of children, provides as follows: “If the circumstances of the parties shall change, or it shall be to the best interests of the children, the court may afterwards from time to time on its own motion or on the petition of either parent revise or alter, to any extent, the decree so far as it concerns the care, custody and maintenance of the children or any of them.”

It appears from the record that the plaintiff was entrusted with the care, control, and custody of these two minor children at the time she obtained her divorce. By doing a man’s work which, when service men returned from the war, she was required to relinquish, and with the help of her mother and Mrs. Higgins, she provided for the comfort, health, and welfare of these two boys during trying years when they needed -a mother’s care and when the defendant, by his own admission, was unable to provide a home.

■Defendant’s alleged change of conditions since the granting of the divorce are his reformation, his second marriage, and a remodeled home. True, defendant has a good home. The record discloses that the plaintiff has just as adequate a home, with the same amount of facilities and the same benefits for raising the children as the defendant.

Not until this trial did the defendant- or his present wife express a desire to have the custody of the younger child, Dennis, now nearly five years of age. Defendant has not refuted the fact that he denied Dennis was his child. In writing to the children he wrote to Richard, the older child, upon the theory that he was older and could read. He ignored the existence of Dennis. This testimony shows a malignity of heart and a disregard for the future reputation and happiness of- Dennis entirely inconsistent with the defendant’s professed parental care. The trial court did not find the plaintiff to be an unfit and improper person to have the care, control, and custody of the younger child, and previously in the divorce action had found her to be a fit and proper person to have the control, care, and custody of both children.

Defendant offered certain letters in evidence, written by the maternal grandmother, constituting expressions of her opinion as to what would be for the best interests of at least the older child. These letters were properly not admitted in evidence and, at most, constituted the maternal grandmother’s opinion, and were not binding on the plaintiff.

By agreement of the parties, the trial judge talked to Richard and reported that from this conversation Richard liked both of his parents, was happy with them both, and expressed a preference to be with his father. The child’s statement may be considered, but is not ■controlling in determining his custody. -

The rule to which this court is committed appears in Swolec v. Swolec, 122 Neb. 837, 241 N. W. 771, as follows: “In awarding the custody of minor children, the court looks only to the best interests of such children, and those of tender age are usually awarded to the mother.”

And as stated in Feather v. Feather, 112 Neb. 315, 199 N. W. 533: “We think it is generally conceded that the best interests and welfare of a child of tender years will be best subserved by placing it in the custody of its natural mother, if she is a fit and proper person.” See, also, Boxa v. Boxa, 92 Neb. 78, 137 N. W. 986; Downs v. Downs, 134 Neb. 457, 279 N. W. 151; Dier v. Dier, 141 Neb. 685, 4 N. W. 2d 731.

As stated in Gross v. Gross, 122 Neb. 25, 239 N. W. 201: “Custody of minor children awarded their mother in a divorce action will not be disturbed in a subsequent proceeding to modify the original decree, unless it is shown that the mother is an unfit person to have their custody, or that their best interests require such action.”

From an examination of the record, we are convinced that for the best interests of these two minor children they should not be separated, and in this regard the following authorities are applicable.

In Poor v. Poor, 237 Mo. App. 744, 167 S. W. 2d 471, the custody of two boys aged six years and 11 months was involved. By stipulation of the parties, the same as in the instant case, the mother was given the custody of the children. Subsequently the father filed an application to have the custody awarded to him. He had remarried and there was evidence that tended to establish that the conditions of his home were congenial and happy,- and that he was in a much better financial condition than at the time the divorce was granted. He contended the home conditions of the mother created an unfavorable environment for the children. The trial court divided the custody, awarding the older boy to the father and continued the custody of the younger boy with the mother. The court, after an explanation as to the older boy needing the advice of the father and the father’s attachment to the children, came to the conclusion that it would not be wise to sacrifice the interests of the children, and stated as follows: “It is always a tragedy in the life of a child when its parents are divorced. It is the children who suffer the bitter fruits of their folly. This has been the lot of * * * (the two little boys in question) and another tragedy should not be injected into their lives by separating them. * * * It is our conclusion that it is not to the best interest and welfare that these children be separated at this time; and that there is not sufficient change in the conditions of the parties, financially or otherwise, to warrant the court changing the original decree, * * See, also, Dunnigan v. Dunnigan, 182 Md. 47, 31 A. 2d 634; Tuter v. Tuter, (Mo. App.) 120 S. W. 2d 203; Fisher v. Fisher, (Mo. App.) 207 S. W. 261; Gibson v. Gibson, 156 Ark. 30, 245 S. W. 32; Ellis v. Johnson, 218 Mo. App. 272, 260 S. W. 1010; Bedal v. Bedal, (Mo. App.) 2 S. W. 2d 180.

In the light of the foregoing decisions it is clear that generally the love, solicitude, and devotion of a mother cannot be replaced by another, and is worth more to a child of tender years than all other things combined. A child should not be deprived of necessary and wholesome influences which spring from these characteristics of a mother if it can reasonably be avoided.

From an examination of the record and the authorities as herein cited, we conclude that the plaintiff should be, and is hereby, awarded the care,’ control, and custody of Richard William Bath and Dennis Eugene Bath, minor children of the plaintiff Dorothy Bath and the defendant Herman Bath, and that the defendant have the right to visit said children at reasonable and proper times as may be determined by the district court; it is further ordered that the defendant pay to the plaintiff the sum of $40 per month for the support and maintenance of Richard,William Bath and Dennis Eugene Bath until further order of the district court, and the sum of $200 as attorney’s fees for services rendered in this court, in addition to the allowance for attorney’s fees in the district court. The district court is hereby directed to enter judgment in accordance with this opinion.

Reversed and remanded with directions.