*1 paid judgment court is mod- or wages money tendered his in or its equivalent, penalty provided ified and the cause is remanded with direc- by law reduce the thirty-day period. tions to the trial court to amount continued for the full respondent’s judgment in favor to There was no whatsoever $277.92, respond- together with the sum of parties contemplated payment in the sum of ent’s costs the trial court wages earned employ- a check. The $21.00, hereinbe- legal less the deductions pay money er did not due into court payment fore referred to for the of which or offer judgment. to confess Plaintiff es- appellant responsible. appeal on Costs right tablished his to recover the amount appellant. demanded, claimed and and under pro- 45-606, I.C., visions of section should be TAYLOR, ANDERSON, J., J., and C. attorney allowed fees. BAKER, J.,D. concur. not construe I do the statute as inter- preted majority opinion, nor can I KEETON, (dissenting). Justice reasoning by follow the which the conclu- appealed opinion judgment my In sion is reached. would affirm the judg- employee affirmed. from should ment. provisions discharge and under I.C., 45-606, entitled to im-
section money. The check payment
mediate payment wages offered
thereafter ground it was on the refused
earned was
tendered provided statute would then
penalty having been employee never
stop. The *2 Knudson, d’Alene, &
Whitla Coeur respondent. *3 d’Alene, McFarland, Coeur &
McFarland Wash., ap- Smith, Spokane, Cary
Del
pellant. visit
custody to plaintiff be allowed month periods each him "for such out of may as the feel to be reasonable Court just under the circumstances.” The petition supported the affi- KEETON, Justice. Mary she davit of in which the child Irene they as parties to will be referred why set forth she desired numerous reasons Appellant will be appear in the trial court. defendant; custody to be awarded to respondent as plaintiff referred to as defend- present also affidavit of the wife defendant. Plaintiff and were defendant al- which, ant in among things, formerly husband, wife and residents of leged her willingness to take Lake, Hayden grant- Idaho. Plaintiff was Irene de- into the home herself and August ed a divorce 1954. Subse- fendant and care for her. quent granting plain- of the divorce petition for An filed Hayden tiff answer was to Spokane, moved from Lake to reasons modification numerous granting Prior to the which Washington. why alleged petition were August as should dated agreement divorce an had, parties granted. Trial on issues was between the into 1954 was entered submitted, plaintiff agreed should and other evidence in which it custody minor children and the trial court modified the of three order have the care, formerly entered, decree awarded the namely, Mary marriage, issue of custody control and of the minor Tobler, Tobler and Barbara Jane defendant; Irene Tobler defined subject visi- to reasonable Michelle term “reasonable visitation” and fixed cer- By the defendant. rights given tation periods tain in which chil- the two minor care, control and the decree terms of dren, Michelle, Barbara should be pur- were the children Jane permitted defendant, to be stipulation. February On suant subject transportation to the condition that petitioned the court for a defendant expenses paid by him. From the order decree, and for reasons modifying appealed^ so the decree prayed: *4 alleged error, assignments although The of care, custody sepa- control and “That the stated, rately all relate to two ques- basic Irene Tobler be decreed to her Mary of * * * First, judge the trial did tions: abuse father, his entering the order of discretion modifi- visitation” term “reasonable awarding custody of defined; children in cation other two Mary Second, child respondent? Irene In to an attack on said cites finding, did the court err defining the term “rea- numerous authorities and oth in which this fixing sonable times visitation” and when er equal courts being have held things children, the other two Barbara years, children of particularly girls, tender Jane Michelle, him permitted would be visit to should be custody awarded of to the custody? be in his general mother. The stated rule so well recognized See and established. Mary February The child Irene was born 19, Richardson Richardson, v. Idaho 21, petition 1941. At the time of the 718, cited; 719, 236 P.2d and cases therein years age, modification she was fourteen Harmon, Harmon Ky. 94 S.W. past By and is now an affidavit and fifteen. 2d 670. private in a with the trial conversation Sufficient answer to this contention expressed preference judge she a decided Mary is that Irene is not a minor child of Subsequent to be to defendant. years, tender within meaning of the divorce defendant granting of to awarding custody decisions children to the Hayden at Lake and has home remarried of the mother. business, and testi- engaged he is where Schiermeister, In Schiermeister v. home a suitable he mony discloses that 261 P.2d the court held that raise for and care financially to able and is awarding custody decisions children to Testimony dis- also Mary child Irene. they mother where were of tender much attached Irene closes that application years have no a child of the unhappy and father; that she age of fifteen. custody of in the upset while emotionally found: court the mother. question custody of a mi able to initially is now nor child defendant committed to the sound “that proper discretion of provide legal a suitable and the trial such court and Mary Irene daughter, court’s determination will not be inter said dis- circumstances of a showing under fered absence and that Wilson, both the Court an abuse discretion. Wilson v. closed to pre- the evidence 291 P.2d personally and 77 Idaho 1113. The trial for the hearing it is not abuse his discretion in judge did award the said at sented the said ing and welfare interest care, father, con- and there was Mary Irene Tobler sufficient show De- granted ing conditions that would trol beneficial to the child and in furtherance fendant.”
228 provide warrant amended to during best interest the odd of her welfare and judge. years 1955, 1957, numbered such trial as the modification made
etc., the Defendant shall be entitled to child to be wish While the have the said minor visit him children where parents of the to one in his Easter, Thanksgiving on parties are parents separated are and both and Christmas Eve and the Plaintiff persons to have the shown to be suitable children, shall have all of the in- said finally of the is not determinative cluding Mary Irene Tobler on Christ- issues, for a trial proper it matter Day. mas During the even numbered in de court to with other evidence consider years 1956, 1958, etc., such as termining the child’s best interest. Plaintiff shall be entitled to have all of children, including Irene in Primarily and best the welfare * * * Tobler, Easter, on Thanks- sole mat terest of or children is the a child giving Eve, and Christmas and De- ter with court is concerned which the fendant have the children for said importance re supreme custody is their Day.” Christmas personal desires claims or of the gardless by plaintiff This order is as not attacked of the parents, and the wishes being within issues an and as abuse yield determina to the must in such cases discretion. child’s ulti such best for tion what Warnecke, 28 good. Warnecke mate speci petition for modification 699; Hurner v. 259, 182 P.2d
.2dWash pe fically fixing visiting for the asked P.2d Hurner, 720. children, riods Barbara for Jane Michelle, of modification in the order court which the periods in visiting parties been unable to certain stated that the had fixed Michelle, could children, “I periods do feel agree visiting Barbara on Jane ** provided defendant, and further *. be better regular would visits Barbara should have youngsters I that defendant think For the benefit Jane summer, every weeks period six regulated.” Hence there is for it should be when she period a like Michelle contention that determi no merit years. age of six judge is not reaches nation within made the issues. Additionally the court defined term as follows: visitation”
“reasonable
parents
agree
could not
If the
on
jurisdiction
periods
visitation
visitation
court had
term reasonable
“That
hereby
periods
same
is further
fix such
and define the term
and the
rea-
shall
parent
Any
February
1955, respondent petitioned
sonable
suitable
visitation.
or his
given
to see her
right
should
modification of the decree
divorce
such
end
and to have
of the eldest
child or children
n children with
children,
at reasonable
three
then
her or him
Wilson,
aged
years,
places.
fourteen
to her
times and
Wilson v.
be decreed
*6
father,
respondent.
Idaho
We that six- are has provide remarried and is to a able in the periods provided for visiting week home, supervision care and for the thirty to should be reduced summer months n days. and relationship that the with of the child modify the judge so The trial will respondent’s good. second wife has been order. petition The allege appellant, does not that so appealed order from as modified is the mother, anywise child’s unfit is an allowed. costs .affirmed. No person custody, to have the child’s al- but leges merely happy that the child is not ANDERSON, J., TAYLOR, J., and C. living her mother has not re- with and (cid:127)concur. understanding ceived the care a and that
young girl age requires. of her The bal- SMITH, (dissenting). petition ance of the likewise is couched in Justice to effect conclusions the that view of the majority agree with the to unable am expressed preference child’s and desire to briefly my rea- (cid:127)opinion set forth and shall father, respondent live with her believes therefor. sons it to be of for best interests the child 27, 1954, appellant, in the August that the decree of divorce be modified “so action, was awarded a divorce divorce wishes,” e., i. as to conform with her that custody respondent, and the of their from respond- custody decreed to child’s Appellant children. minor three ent. grounds on of divorce extreme awarded appended of The affidavit the child is to allega- Respondent admitted cruelty. wherein, petition, majority opinion complaint his default for of tions states, set forth “she numerous reasons appear plead the action. to failure to be why she desired to thusly things his he admitted Among custody (respondent). defendant” An with another woman association continuous child’s inspection affidavit shows desire to be freed his marital .and “numerous reasons” be the appellant. child- (cid:127)obligations these
.225 afterward, ent before divorce as well as headstrong child to of a ish conclusions no preference that has fa- she for her been little has that there effect: may moth- ther. The and her same criticism be directed her between companionship findings between to the understanding of the trial court. lack er and out work has tried to them; that Appellant petition mother’s answer to the help from her no but receives difficulties for alleges: that the child to her close mother; she has been lazy, has spoiled but rebellious and likes spent weekends father improving; respondent second father’s wife, that she wishes his second responsible wife up breaking her live with permitted to desires appellant and respondent; father. said second wife was married when reT spondent was associating with her had and that found trial court minor she had two children of own; her under preference to expressed a decided and that she does not have the by the father, followed Appellant her own children. alleges then that “it findings, out set conclusion been any that there material welfare interests entry since condition of the decree care, con- Tobler that Mary Irene said *7 modification; justify a only that to the Defend- granted trol and improvement which has occurred is support ant,” setting forth facts to without in the child’s attitude. conclusion. such following of Mr. Tobler modification, though petition re- knowledge the child’s shows of the cause supporting affidavit of the with garded break-up of the home of appellant child, to con- not state facts sufficient does respondent: modification, cause of action for stitute a “Q. Well the child not set forth indicative understood that it does facts Mrs. divorce, prior to the. material, permanent Hilgren, you and substantial any that (cid:127) together, subsequent going had been change in conditions didn’t she? divorce, entry showing the decree of is correct. That A. tending to that or show re- “Q. And she understood quested would be for interests of rea- break-up your child, anything remotely or even own bear- son * * * due to ing upon changed you the fact that conditions other than mind, admittedly Hilgren Mrs. associating the child’s state were exist- that, with each other. The child knew from the child during interview, that . A. didn’t she? Yes.” than the conclusion as contained in the court’s findings that the prefer- child has a Respondent then testified to the effect that ence for her father. gone through had emotional divorce; stress because of also he The record shows the appellant fitness of appellant very knows that much “resents good mother;” as “a She loves her chil- daughter fact that her be raised would dren, perhaps is “a little more indul- by the woman she have broken claims to gent than she should have been” as a up marriage.” her mother. The Mary Irene is fond of father, close to her perhaps who exer- Appellant’s testimony, re- which was not cises more control over her than her moth- butted, some shows that Irene had er. Several witnesses they testified that difficulty that adjusting herself to the fact appellant’s had visited home from time to parents; there had her been a divorce of time and all were praiseworthy of her home temper always has tantrums she well as her attri- and the environment as discipline. Appel- child to difficult was a to her children. good butes as a mother testified: lant then anywise Nothing appears in record “Recently I feel she is more con- have the showing appellant is unfit to her school work and was tented children. of her attempt more of an making to make of re- in favor The most that can be said contented she more than had herself * * whereas, * spondent for some father is that first moved to town. we when courtship his period during of time being told what do or resented She married, wife, were still second while both do or asked to do certain what away spent many from his home he hours always wanted things. She what * * * have which could and should otherwise typical it is have couldn’t she * * * whereas, family; since been to his devoted very She is much age. * * * more he now shows marriage his second he has father like ** child, Irene, oldest interest in *. don’t feel lenient more * * * prefer- present fulfilling her desirous of her mind knows *8 him rather than her being with ence of quite a little.” with been have mother. interviewed the court child in trial appears Nothing Further, in the rec- the record shows an improve- chambers. information was what elicited ment the child’s present as to welfare in her ord
227
374,
custody.
Olson,
the
existed
Olson
surroundings
her mother than
v.
47 Idaho
34;
Maudlin, supra;
in 276 P.
prior
Maudlin
the divorce
v.
to and
the time of
at
Rogich
Rogich,
156,
v.
78
P.2d
more contented
299
has become
Idaho
that
the child
A91.
decree may
divorce
modified
adapted
present
not be
to her
evironment
to conform
custody prefer-
to the child’s
more obedient
to her school work and
ence,
material, per-
unless there has
a
mother;
na-
general her emotional
manent
change
and substantial
condition
more
ture has become
stabilized.
entry
subsequent
circumstances
any
only
respondent
allege
fail to
Not
did
original
showing
decree
that modifi-
changed
showing a
and circumstances
facts
cation would
the best
interests
bur-
condition,
the
he failed
sustain
but
child. Simpson
Simpson, supra;
v.
Ashton
material, perma-
showing any
proof
den of
Ashton,
991;
v.
408,
59 Idaho
83 P.2d
in conditions.
substantial
nent and
Fish, supra;
Maudlin,
Fish v.
Maudlin v.
changed
showing
condi- supra;
Gish,
The burden
Gish v.
465,
72 Idaho
244 P.2d
modi-
upon
party seeking the
tion rests
252
143;
Wilson, 73 Idaho
Wilson v.
51 Idaho
Simpson,
197;
Peterson,
supra;
v.
Simpson
Peterson
P.2d
v.
fication.
78, 170
Fish,
Idaho
345;
67
v.
supra.
Fish
Rogich Rogich,
v.
P.2d
Maudlin, 68 Idaho
v.
802; Maudlin
P.2d
presented
Respondent
upon
has
his case
Leverich, 175
323; Leverich v.
P.2d
proposition,
right
of a fourteen
303.
174, 152 P.2d
year
parent
old child to choose the
whom
respondent has remarried
fact
prefers
parent,
over
to be her
may
improve-
show
a home
custodian,
denied,
not
except
should
in itself
is not
sufficient
his finances
inment
compelling reasons. The case of Ludlow
decree.
to warrant
Ludlow,
Cal.App.2d 610,
201 P.2d
v.
Leverich, supra; Peterson v.
Leverich
by respondent, makes such a state-
.cited
Idaho,
645.
288 P.2d
Peterson,
appears
which
as dictum
in the dis-
ment
right
cussion relative
a minor of
awarding
the cus-
matter
While
years to
guardian
nominate his
fourteen
rests in
sound discre-
tody of
court,
who,
approved
ap-
if
must be
instance,
first
court
tion
Code,
citing Cal. Probate
pointed,
an
§
upon modification
existent
as
as well
15-1802). The
I.C.
(compare
California
§
discretion
of that
occurs
abuse
decree, an
however,
court,
recognized
pref-
support
finding
fails to
evidence
when
years
child of fourteen
welfare of the erence
one
interests
other,
by changing parent over
controlling
served
will
*9
Their tance, per- regardless of the claims and parents. Even the
sonal desires of the must
wishes of children such cases
yield the determination of what good.” also
for their ultimate See supra. Rogich,
Rogich v. question disposition of modi-
(cid:127)My unnecessary comment it makes
fication questions in-
upon remainder of the said cause.
volved the trial of modification of
The decree re- the cause be reversed and
court should to continue the with directions
manded child, Mary Irene mother, subject appellant, respondent, her fa- visitation
right of times and reasonable
ther, reasonable at time.
periods
BAKER, Judge, District concurs in this
dissent.