*1 45,826 Nо. Appellant, Adkison, Adkison, Lee Dorma v. William Earl Appellee.
(476 216) P. 2d Opinion 7, 1970. filed November Lasswell, Smith, Stinson, McMaster, Smith, Gerald D. of Lasswell
Wichita, argued appellant. the cause and on the brief for The opinion of the court was delivered
Hatcher, C.: This an of the district judgment aрpeal court granting custody of a five months to the baby girl old father decree. following divorce appellant does appear requesting any change be
in the decree divorce but dwells on the pro- ceedings for the purpose showing the arbitrary prеjudicial conduct trial in the entire judge matter.
The general thrust that— appellants contentions is throughout “The demeanor trial court trial shows that unduly against trial court prejudiced abused discretion and its prejudice materially receiving plaintiff’s hindered the justice.” substantial Insofar as above contention is to the decree to be applied granting custody five months old to the father mother, rather than to the we are to agree inclined with appellant. facts, we Before discuss the procedure trial court, of the trial it would rulings if dis- pеrhaps helpful we general cussed rule of applicable law determination child custody.
When a situation such as is exists here presented, paramount consideration of the trial court is the welfare and best interest trial of the child. court is in the best position to judgе whether the best interests of the are child being served and will discretion this abuse of judicial the absence of 195 Kan. v. Bergen, judgment. (Bergen trial court’s
not disturb a *2 2d 66, P. 103, 125; v. 193 Kan. 391 Kilgore, 403 P. Whitebread 2d 493, Hazelwood, 815.) P. 2d 1019; 190 Kan. 376 Hazelwood v. However, by shown affirmatively an abuse discretion where the order or record, change reverse will not hesitate to 2d Gardner, 529, 389 P. Kan. trial 192 court. v. (Gardner 746.) is of that a child
It
is an
rule in this state
if
elementary
its mother’s
must be entrusted to
age
necessity
tender
it almost of
care,
short-
be some
unduly
possible
what
weighing
may
without
Janney,
v.
or
comings
(Janney
her character
conduct.
230,
Kan.
A and con child careful custody requires on in order scientious all material factors consideration may judicial premises. courts exercise sound discretion in Lancaster, 368, v. 2d 169 Kan. 219 P. (Prier 358.) 14, A Plaintiff were married 1966. September and defendant 20, child was 1968. Plaintiff marriage bom from December after had three children a About one month prior marriage. child home marriage, was born to latter defendant left the and took all a bottle furniture. Plaintiff to borrow baby. warmer to agency helped feed The welfare then a start new home. the time referred herein all of defendant had contributed but twenty dollars to thirty plaintiff and the child. facts are not in above dispute. 28, 1969,
On March plaintiff filed suit divorce of the child. Defendant filed an answer and cross-petition asking for divorce from child. plaintiff 23, 1969,
Trial was an commеnced announce- May following ment that— trial court pretrial developes a “After short it the divorce itself is not con- conference Therefore,
tested in this case. evidence the divorce should be mini- mum. to the plaintiff testified facts heretofore and fur- presented
ther that the kill She threatened to her with a gun. “deadly of him.” testified that she scared Plolmes, a witness Dorothy corroborated plaintiff, plaintiff’s at gun when defendant testimony. present pointed She plaintiff. She had observed black and blue marks on while plaintiff she was living with defendаnt. She testified that “drinks a bit quite and when he drinks he has a She terrible temper.” present when defendant moved out the furniture. When he moved stove, no the bottle way warming month old baby. She further testified that took care of the good children, them kept clean and was a fit and mother. proper
The court then advised counsel any other cumulative, evidence would and that at merely this time no more evidence was needed on the question. divorce
Thereafter the defendant his testified own behalf. Defendant stated that he had his request heard wife’s divorce and that agreed he a divorce should be this case. He stated that he did wish to contest itself.
Defendant was then asked state his for divorce and grounds over the objections of plaintiff grounds testified what his for divorce *3 would be and his fights. wife caused their He claimed further tеstified, “I am a given nervous man.” He his wife highly had thirty 20, 23, dollars for from 1969. January May He requested the for of he had his child and stated facilities to keep the child in that his had him aunt asked to make his home with her. he, He child; said his aunt his care the and mother would child, he could that and he never wanted adequately care the divorce in the first He testified he saw a place. man enter his 3, wife’s house at 9:30 P. M. and not May come out before he left at M. 12:30 A. stated he witness his wife approached and the other day man the next and tried to his see child and was refused. $1,600.00
In the lаst four months he had in wages. received Gladys Adkison she was mother of testified defendant and 4th, Winfield, that she lives at 602 West Kansas. She stated that she that baby to raise the and she was willing capable and had facilities. The witness stated she sat Mr. adequate Adkison in house, only, front his one time between P. of wife’s 8:00 M. and A. M. 5:30 A. At about 12:30 a man day. about M. next came out, car back inside his windows and went rolled house. up stated she sixty-two cross-examination witness years
On old had last cared for children She thirty-two years ago. own, of children her five had six before her divorce. She cared for her own five children for three her own years after divorce until father, former
her who was her health bad and then their went ar- husband, she had been She further testified took them raise. rested for while intoxicated. driving defendant, witnesses,’ testified that including plain-
All of that the children were clean good tiff was a housekeeper well cared for. a divorce parties
The trial court entered judgment the infant child that the each from the other decreed M. no later than 8:00 P. be transferred from to defendant plaintiff that each party pay It was further ordered the date the decree. order under which defendant their own fees. The attorney previous fees attorney plain- allowance paid $120.00 $200.00 tiff was set aside. findings, an amendment of amend- filed a motion for and for a new trial. judgment
ment of investigation his prеparation made own Counsel attached to his motion. He affidavit above presenting she stating that from the aunt statement signed the defendant used she did not know age, was 64 and his mother were that defendant in the case and name could take care of she not with her bеcause live going thought stated she She further job. and hold her the baby. care of been given should have was attached his affidavit which attorney Plaintiff’s also filed mother brother-in-law defendant’s the written statement of the baby. The statement reads keep help who was in part: my Rаlph part Tanner “During early 1930’s brother or middle traveling Gladys mother] and outside separated [defendant’s living Gladys photographer. *4 time of Kansas as the State my to children that were born in & her the five Winfield had with my period
brother, Ralph to of time brother would mail Tanner. this money give Gladys support & five their me me children. very poor “During Gladys taking period of time care of children my finally got& & it became so bad that I went the children & took them My for her mother to raise. mother thereafter raised children for number Gladys although Cowley they & seldom visited ever them lived in County, Kansas.
“During Gladys my the time that had the children before mother took them raise, very poorly by Gladys. the childrеn were cared for Their clothes were dirty they shoes, although money & delivering had holes in their I was sufficient Gladys support. each week to for their picked up Gladys “At my the time I the five children from & took them to my remarried, mother for her to Gladys raise until brother told me she didn’t want thе children since she didn’t want to be bothered with them. Gladys “I have gave up been told that said that she the five children because of her health. This gave up is not true. The reason she them is because she taking wasn’t care of them & didn’t want to be bothered with them. The condition of the сhildren in her care was so bad that I had to take them my my mother’s to raise until brother remarried.” Plaintiff’s attorney also filed an affidavit which reads in part: attorneys “That he matter; is one of the for the in the above entitled Department, he has Winfield, checked the records оf the Winfield Police Kansas, and Gladys has ascertained that such records reflect that one Adkison City Winfield, Kansas, convicted in charge the Winfield Court of on the 1944; charge drunkenness in driving that she was arrested on the under the liquor intoxicating having influence Winfield, no driver’s license in Kansаs, 29, 1968; on October Department and that the records of the Police Winfield, Kansas, reflect Gladys evidence of .19 alcohol content in Adkison’s time; blood at the Gladys and that thereafter said Adkison was convicted of charges 27,1968, Municipal Kansas, November Winfield, in the Court of $100.00, placed fined the upon probation sum of period year for a of one reporting thereafter parole July 8, 1969, dates to her officer on and No- 12, 1969; vember at the 29, 1968, time of her arrest on October the said Gladys placed jail Adkison City of Winfield and remained Jail jаil overnight following morning; was released the At the trial, the motion for new the law partner plaintiff’s original counsel argued the matter because original coun- sel had made the affidavits and he also thought might be required to testify in connection therewith. After the argument the cоurt in substance stated that since the counsel arguing this motion was not the same case, counsel who tried the the court would be re- quired disregard arguments of counsel. Thereupon, questioned trial counsel on why he did not argue the motion. Trial counsel’s reply was that he was lеaving himself available to testify concerning the affidavits filed support of the motion.
The trial judge, disregarding the arguments of counsel and the uncontradicted affidavits introduced with trial, the motion for new then stated that he had made certain findings of fact at the trial in order to sрare the feelings of the parties involved. He stated if the court must now make specific findings, which findings *5 finds that the the court by
had never been party, either requested the had wife against “husband for divorce proven grounds against had him. grounds the wife for divorce proven and the wife the child. custody was unfit tо have made to request and in
An was filed due course appeal in forma with appeal to district court for permission proceed and application permission The trial court denied the pauperis. be obtained from this court. to during temporary custоdy filed an application rights. in visitation the alternative reasonable
appeal denied being that she was Plaintiff evidence under oath presented moved with child. Defendant rights reasonable visitation be- time different in a short period from a number of residences Nеither custody. motion temporary tween the trial and the counsel find where the defendant nor her could out child. The that she evidence staying presented three only seen her child times since custody allowed court, of the plaintiff, the father. over objection While thе defendant sworn. testify being without sworn, suggested testifying without counsel being retro- oath testimony he would under willing have stated, active. The We want to therapy. “this is just at least understand the motion for overruling each other better.” In stated, “Well, appeal is on rights, reasonable visitation thе court court, error to another and other the other court will decide whether do, it was committed I see to leave nothing except here. status quo.”
We are to conclude that at the hearings custody forced child there careful and consideration of was not the conscientious it for the exercise making possible all material factors trial court to sound discretion the facts judicial premises, under circumstances disclosed the trial court abused its the record the five months old from its mother taking discretion father. giving сustody delivery custody are not immediate directing We to mother. must Right custody the child be determined time determination existing facts circumstances has was made year expired Over a since the order is made. There is also of child if and question the trial court. change decreed. when *6 tibat, It is compatible process as as with due possible, ordered soon the proper be held to determine proper full procedure, conditions, the matter infant and that custody under present be hearing. transferred another division such TÍRE
APPROVED BY COURT. disclosed I еrror is J., concurring: agree prejudicial Fontron, by the record and that Adkison new trial Mrs. should be Furthermore, as to matters to child I concur relating custody. the view that the case should transferred to division another the Sedgwick District Court for the County purpose conducting the rehearing.
In addition to the out in its directions which the has set opinion, I would also direct Mrs. Adkison be accorded specific rights of visitation with her daughter, infant even now less than two old, during rehearing pendency proceedings, the order time, such rights visitation out the spell place lеngth of the mother’s visits.
The record clearly reflects Adki- recalcitrance on of Mr. part son in matters visits pertaining Mrs. Adkison with the child. He seldom mother, permitted any visitations and failed her keep properly advised of the child’s whereabouts. oral Upon argument, at which Mr. Adkison did appear, court was advised that Mrs. Adkison had not seen child for a period of several and had months been unable to ascertain where either the her father could be found.
For the reasons expressed, I believe a visitation proper order of should be made as early as possible. only Not would an order be just, but it might be of assistance to Mrs. Adkison in locating her small daughter.