FARRELL VS. FARRELL (CHILD CUSTODY)

Key holdings

Practitioner summary

The wife appealed from the custodial provisions of a divorce decree awarding custody of two minor girls to the husband, assigning both procedural error and abuse of discretion. The court declined to disturb the trial judge's discretion on relative fitness, which it could not say pointed to only one result, and would not substitute its discretion for his. However, the assigned procedural errors had merit: after announcing at the close of trial that it would not award custody to the father and would place the children with a third person (the governess, Mrs. Hyatt), the court, upon Mrs. Hyatt's inability to serve and after an in-chambers conference apparently without further hearing, entered judgment awarding custody to the father. This was inconsistent with the court's earlier view of the father's unfitness and appeared to rest on unsworn, undisclosed statements not subject to cross-examination or rebuttal, examination as to which was not permitted; it also disregarded the mother's proffered evidence that she had recovered her health, a matter of central concern when the court had considered placing the children with her. Because a motion for modification remained pending and had never been heard on the vital question of the mother's fitness, and given the confusion of the proceedings, a fresh start would best serve the children's interests. The court remanded for a full new custody hearing, empowering the trial judge to give full consideration to all matters bearing on the fitness of both parents and the suitability of their homes, with actions so far taken deemed no final determination. As to the denial of allowances for two hearings, refusal was proper where the wife was personally present and had successfully borrowed the necessary sums. Black v. Black, 47 Nev. 346, 221 P. 239 (1923).

In plain language

In a divorce granted to the wife, the trial court awarded custody of the couple's two young girls (ages 11 and 8) to the husband, and the wife appealed. When the trial ended in February 1955, the judge announced he would not give custody to the husband, was inclined to give it to the mother if her health was suitable, and instead would give custody to the children's governess, Mrs. Hyatt (or, if she declined, to some other third person, but not to either parent). Mrs. Hyatt reluctantly accepted, but before the judgment was signed she said she could not keep the children. Then, at a chambers conference attended by the husband and apparently without a further hearing, the court entered judgment giving custody to the father. The Nevada Supreme Court declined to substitute its own discretion for the trial judge's on the parents' relative fitness, which presented a perplexing problem. But it found merit in the wife's procedural complaints: the abrupt award to the father was inconsistent with the court's earlier strong view that the father was unfit and appeared to rest on unsworn, undisclosed statements made in chambers that were never subject to cross-examination or rebuttal, and the court gave no consideration to the mother's evidence that she had recovered her health. A motion to modify was still pending and had never been heard on the vital question of the mother's fitness. Because of the confusion in the proceedings, the court remanded for a full new hearing on custody, empowering the trial judge to consider all matters bearing on both parents' fitness and their homes, with nothing done so far treated as a final determination. The court also held it was proper to deny the wife allowances for two hearings where she was present and had managed to borrow the needed funds.