West v. West

PEEK, J. This is an appeal by defendant Biehard West from that portion of an order of the trial court modifying the custody and support provisions of a final decree of divorce. Plaintiff Shirley West was granted an interlocutory decree of divorce from Biehard in April 1957. That judgment incorporated in its terms an agreement between the parties relative to the support and custody of their four minor children. By its terms Shirley was given custody of two of the children and Biehard received custody of the remaining two. He was further ordered to pay $100 a month in support for the two children in Shirley’s custody. Like provisions were incorporated in the final decree, which was filed in the month of June 1958.

In August 1958, Biehard, by an order to show cause, sought to have the decree modified as to the amount of the support payments and following a hearing thereon, the payments were reduced to $75 a month. Thereafter, Shirley sought to have Biehard held in contempt because of his failure to pay to her the amounts due under the previous orders of the court. The contempt matter was heard on December 8, 1958, and on January 30, 1959, the court made and entered its order wherein it held that the evidence plainly indicated defendant was in contempt, but noted the difficulty Biehard would have, because his income was not large, in making the payments as previously ordered, and continued the matter until February 9, 1959. Following that hearing, the court, on February 11, 1959, found Biehard to be in contempt by his failure to comply with the order requiring him to pay $75 a month in support for the two children in Shirley’s custody. However, the court again continued the contempt proceeding until March 9, 1959, and allowed the defendant to purge himself of contempt by making the January and February payments in full. Also [702]included in this order was the following: ‘ ‘ The court specifically reserves the right, on March 9, 1959 at 10:00 A.M., to modify the decrees of divorce herein by giving custody of all four children to plaintiff and ordering defendant to pay $37.50 each for the support of said four children if the terms of the present order are not complied with.”

After numerous continuances, the matter was finally determined on April 16, 1959. In its order the court held Richard in contempt and further ordered that: “Because of said contempt and based on all the records in this case, the Court hereby modifies the order of custody in the decrees of divorce to provide the custody of all four children be given to plaintiff forthwith, ...” The present appeal is solely from this portion of the order.