Pirrong v. Pirrong , 552 P.2d 383 ( 1976 )

HODGES, Vice Chief Justice.

This is an action for divorce, custody of children, alimony, and division of property. Certiorari is granted for the limited purpose of reversing the judgment of the trial court and the decision of the Court of Appeals concerning child custody and child support. The trial court and the Court of Appeals decisions are affirmed as they relate to alimony and property division.

Appellant Sandra Sue Pirrong and Ap-pellee Cecil M. Pirrong were married on June 12, 1958. Three children were born of the marriage.

Appellant filed suit for divorce, alleging incompatibility. After the trial, she was granted the divorce, on that ground, and was awarded custody of the three children, child support of $450.00 per month, with “reasonable” visitation rights granted ap-pellee.

The Decree made certain orders relating to division of property, but the trial judge refused to grant alimony for support.

Motion for new trial was overruled. The Order then entered made provision for support payments pending appeal, and specified times that appellee should be permitted visitation. Thereafter, the appellant filed her Petition in Error, challenging the property settlement and refusal to award alimony as inequitable and an abuse of discretion.

While the appeal was pending, appellee filed a motion to modify the decree pending appeal, and citations for contempt. The trial court overruled appellant’s plea to jurisdiction of these matters, and proceeded to hear the motion to modify.

After hearing, the court left custody of the older daughter with the mother, while reducing her child support to $100.00 per month, and granted full custody of the younger two children to the father.

Appellant filed her amended Petition in Error alleging error and abuse of discretion arising out of the last custody order.

The evidence presented at the motion to modify custody was the only substantial change in conditions which had occurred from the time the divorce was granted until the order to modify was entered was that the appellee’s emotional condition had become stable. Initially, the appellant was given custody of the children because of the instability of the appellee.

At the initial hearing on custody, the court specifically found appellant was a fit and proper person to have the permanent care and custody of the three minor children of the parties. The testimony of the expert witness was that appellee suffered from domineering, aggressive and paranoid tendencies, and had an obsession about cleanliness. When he was asked about his medical opinion as to the proper custodian of the children he replied, “There is no question in my mind, as far as the benefit of these children, they should basically be with the mother.”

The same physician testified at the hearing on modification that he had seen appel-lee approximately twenty times, that he had progressed tremendously and he saw no reason why he would not be a fit parent for the children.

The evidence is entirely lacking of the. appellant’s unfitness, and the court made no finding that she was an unfit person to retain custody of her children.

The record reflects there had been no substantial changes in conditions bearing directly upon the temporal, mental and moral welfare of the children since the granting of the divorce.

The recovery of the appellee is not sufficient reason to justify modification of custody. The mere fact that conditions have changed since the divorce of the parents is insufficient in itself to warrant a modification of custody. Owens v. Owens, 494 P.2d 318 (Okl.1972); Walker v. Walker, 460 P.2d 900 (Okl.1969).

The modification apparently resulted from altercations between the parties when the father attempted to visit the children. He was told by their mother that the children could go with him if they wanted, but she would not force them to go if they did not want to. As a result, the appellant and her parents were cited for contempt.

The trial court found the mother’s statement to the children, “You may go if you want to, but you don’t have to go,” when making reference to the father’s visits was “merely a subterfuge aimed into coercing the children into staying with her and avoiding the visitation privileges ordered by the court.”

The trial court should not award nor change custody of children to punish a parent for contemptuous conduct. It may, however, consider such conduct in determining the welfare of the children. Young v. Young, 383 P.2d 211, 214 (Okl.1963).

' Assuming arguendo, the conduct of the appellant and her parents was contemptuous, we find such conduct does not presently warrant a basis for modification of the custody decree. It was only a short period of time from the divorce hearing to the modification hearing, which oftentimes we regrettably find the bitterness of the parties continues. Perhaps now a sufficient time has elapsed in which the parties can put their feelings in the proper perspective and consider the important issue — the welfare of the children. If the trial court in a subsequent hearing finds the appellant has continued to violate its orders on visitation, and such persistent violations have affected the welfare of the children, then, in that event, we would have no hesitancy in approving a change of custody.

A divorce decree fixing custody of children is final on the conditions then existing and the facts known to the trial court. In order for the other parent to gain custody it must be shown that he or she is a fit person and there must be a showing of material, permanent, and substantial change in the circumstances or conditions of the parties which affect the children to a substantial or material extent. Lynn v. Lynn, 443 P.2d 106 (Okl.1968); Gilbert v. Gilbert, 460 P.2d 929 (Okl.1969); Walker v. Walker, supra.

The trial court should give paramount consideration to the best interest of the children in determining custody. Where it affirmatively appears, as it does in the case before us, that the trial court has failed to do so, the Supreme Court will rectify the judgment. Baker v. Bursch, 374 P.2d 31 (Okl.1962).

Based on the record before us we order that all the children be placed in the custody of the appellant. The cause is remanded to the trial court to determine the visitation rights of the appellee, and the amount of child support.

Certiorari granted. Judgment of Trial Court and Court of Appeals affirmed in Part; Reversed in Part.

DAVISON, BERRY, LAVENDER, SIMMS, and DOOLIN, JJ., concurring. WILLIAMS, C. J., and IRWIN and BARNES, JJ., dissenting.