Stoker v. Kinney

Opinion

HASTINGS, J. Appellant Robert W. Stoker, Jr. (Robert) and respondent Laura Lee Stoker Kinney (Laura) were married on December 12, 1969, and had one child of said marriage namely Tammral Jean Stoker bom June 5, 1970. The parties separated off and on for about three years when Robert filed a petition for dissolution of marriage on March 26, 1973. In his petition he requested that the custody be awarded to Laura. Robert obtained a default interlocutory judgment of dissolution of marriage on October 29, 1973, which awarded custody of Tammral to Laura.

[880]On November 13, 1973, a stipulation to modify the interlocutory judgment regarding child custody and support signed by both parties transferred custody of Tammral to Robert. Approximately two years later, Laura filed an order to show cause regarding modification of custody and the hearing we are concerned with here was held. Laura testified that prior to signing the stipulation she had received no help from Robert in the way of child support for several months. She stated that Robert had told her that she could support Tammral on her own but if she wanted his help in any way he would want full custody of the child. During part of this time Laura was on welfare. She did not have an attorney nor did she consult an attorney before signing the stipulation, because, as she testified, she could not afford one. Just prior to filing her request for modification, she had heard from Tammral during the child’s visitations with her, that Robert and his second wife were planning to move to Utah and to take Tammral with them. At the time of the modification hearing Laura had remarried and evidence was taken as to the living conditions in her home and the environment that would surround Tammral should the judge transfer custody back to her.

While testimony was being presented on behalf of Robert the court made the following statement to his counsel:

“The Court: You understand, counsel, that the Court’s position, or the Court’s feeling is that here’s a woman—unless therp’s rebuttal to her testimony—that he didn’t pay for the support of this youngster, that he made it impossible for her to maintain a home for the youngster, and that the transfer of custody was through coercion. And even though he’s maintained a perfectly stable, beautiful, loving, and warm home for this youngster for that two years, it’s been with unclean hands. And she’s entitled to a two-year period, and after she’s had her two-year period, if she wants to come back and ask the Court, then the parties will be equal.”