Urquhart v. Urquhart

KAUFMAN, P. J.

This is an appeal from an order changing custody of the two minor children of the parties from the defendant, Michael Urquhart, to the plaintiff, Jonita Urquhart. Defendant urges that the court below abused its discretion in so modifying the custody award. There is no merit in this contention.

The parties, Michael Urquhart, the defendant, now age 31, and the plaintiff, Jonita Urquhart, now age 23, were married on November 7, 1953. Two children were born of this marriage, Steven, in 1954, and Teresa, in 1956. They received an interlocutory decree of divorce in 1956, and a final

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decree in 1958. Custody of the children was awarded to the plaintiff, Jonita Urquhart. Subsequent to the divorce, the plaintiff, Jonita Urquhart, married one Robert Miller in July of 1958. In September of 1958, she, along with her husband, was arrested and convicted of armed robbery in the State of Wyoming. The plaintiff was released on parole after serving 19 months. Robert Miller, her husband, is still serving his sentence in Wyoming and will not be eligible for parole for at least five to six years. Upon the plaintiff’s incarceration, in a women’s reformatory, the defendant moved that the child custody decree be modified. The motion was granted, giving defendant, Michael Urquhart, custody in January of 1959. Plaintiff upon her release from prison moved to regain possession of the children by filing a motion for change of custody in July, 1960.

As is usual in this type of ease, the evidence is conflicting as to the fitness of either parent to have custody. The plaintiff’s sister felt that the plaintiff was a fit mother inasmuch as she took care of her (the sister’s) children satisfactorily after the plaintiff’s release from the reformatory. The children’s pediatrician felt that the children were happy and well eared for when under the care of the plaintiff prior to her imprisonment, and that the plaintiff was a fit mother. The plaintiff is now living with her mother and at the time of the trial expected to be employed permanently in the near future and is now baby-sitting. Plaintiff’s mother said she could support the plaintiff and the children if the plaintiff could not find work. They would live with the plaintiff’s parents until she was financially able to move. The plaintiff feels that she made a mistake in marrying Robert Miller and is now a fit mother, although admitting she has no present plans for divorce. However, the plaintiff has a prior record other than that incurred in Wyoming. She has been charged with shoplifting, forgery and runaways, mostly as a juvenile. Defendant’s present wife feels that the children were not well adjusted while under plaintiff’s care and, of course, the defendant himself does not feel that plaintiff is a fit mother.