178 N.W.2d 233 | Minn. | 1970
This is an appeal from an order of the district court denying a motion of plaintiff-father to amend its order amending the provisions of a divorce decree relating to the temporary custody of the parties’ three minor children and granting their permanent custody to defendant-mother.
The sole issue raised by the father’s appeal is whether the evidence as a matter of law compelled the trial court to conclude that the best interests of the two older children, Beverly and Virgil, required that their permanent custody be awarded to the father. There is no challenge to making the mother’s temporary custody of the youngest child, Mitchell, permanent.
The parties were married in March 1958 and divorced in August 1967, when the plaintiff-father was 33 and the defendant-mother was 27.
In 1965, after a short separation and subsequent reconciliation, the mother dismissed the divorce action she had commenced. Later, in response to this action for divorce begun by the father, she entered into a stipulation with him not to contest his action and compromised all issues except custody of the children. In the judgment of divorce granted in this action in 1967, the court made provisions for the father’s temporary custody of Beverly and Virgil (then ages 8 and 7), and for the mother’s temporary custody of Mitchell (then age 4) with a support allowance of $25 monthly but expressly reserved the issue of permanent custody of all three children for future de novo determination.
After judgment was entered, an answer by the mother was interposed and the trial of the issues of custody and support took place on February 17, 18, and 25, 1969. The court, upon findings which comprehensively detail all of the relevant evidence bearing on the question of custody, determined that although both parents were competent to have custody, the best interests of the three children would be served by awarding permanent custody of all three children to the mother. Explanatory memoranda accompanied both the findings and the denial of the father’s post-trial motion to amend them. At the time of the hearing on the post-trial motion, L. 1969, c. 1030, which amended Minn. St. 518.17,
The transcript, the findings, and the memoranda demonstrate the perplexity of the custody question under the facts of this case and reveal the court’s acknowledged “agonizing” endeavor to resolve the parents’ conflicting demands. Above all, the record makes clear that the
Affirmed.
L. 1969, c. 1030, provides in part: “Upon adjudging the nullity of a marriage, or a divorce or separation, the court may make such further order as it deems just and proper concerning the care, custody, and maintenance of the minor children of the parties and may determine with which of the parents they, or any of them, shall remain, having due regard to the age and sex of such children and the children’s relationship with each parent prior to the commencement of the action. In determining the parent with whom a child shall remain, the court shall consider all facts in the best interest of the children and shall not prefer one parent over the other solely on the basis of the sex of the parent."