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Gotthelf v. Gotthelf

Supreme Court of Arizona

June 16, 1931

ERNESTYNE E. GOTTHELF, Appellant
v.
EDWARD J. GOTTHELF, Jr., Appellee

APPEAL from a judgment of the Superior Court of the County of Pima. Fred W. Fickett, Judge. Judgment affirmed.

Mr. Louis G. Hummel, for Appellant.

Mr. John B. Wright and Mr. William R. Misbaugh, for Appellee.

OPINION

[38 Ariz. 370] ROSS, J.

On July 19, 1929, the plaintiff, Ernestyne E. Gotthelf, filed a complaint for divorce from

Page 187

the defendant, Edward J. Gotthelf, Jr., in the superior court of Pima county, on the grounds of cruelty. In the complaint it was alleged that the issue of their marriage was Edward J. Gotthelf, III, aged 3 years, and that plaintiff was "a necessary and proper person to have the custody and control of said child"; that defendant was a practicing physician and surgeon capable and earning large sums of money, and that $250 per month was a reasonable allowance for the support and maintenance of plaintiff and said minor child, as permanent alimony. It was also alleged that there was no community property. Defendant filed an answer on the same day in which he specifically admitted the residence, marriage, the birth and age of Edward J. Gotthelf, III, the fitness of plaintiff to have his care and custody, and that there was no community property; did not deny and therefore admitted the charge of cruelty, also his ability to pay support and maintenance for plaintiff and the child as alleged.

On the same day the court heard the case and entered its decree as follows: (1) The plaintiff was granted an absolute divorce; and (2) awarded the custody and control of the minor child. (3) It was found there was no community property and that neither spouse had any right to the property, real or personal, then owned or subsequently acquired by the other. "(4) That defendant pay to plaintiff for the [38 Ariz. 371] support and maintenance of herself and said minor child the sum of two hundred fifty ($250.00) dollars on or before the 20th day of July, 1929, and a like sum on or before the 20th day of each month thereafter until the further order of this court."

On May 13, 1930, the defendant filed his second amended petition for modification of the decree (the first petition having been filed on April 24th) in which he charged the plaintiff with leading a dissolute and corrupt life and neglecting properly to care for the minor child, the allegations in that respect being as follows:

"That she has been engaging in drinking parties; that she is frequently intoxicated, and frequents public dance halls, cafes and like places, under the influence of intoxicating liquor; that she associated with men of dissolute character, the names of some of said men being unknown to this defendant; that due to her habits and manner of living, she is neglecting to properly care for the minor child of these parties, often leaving the said minor child for long period of time, day and night, under the care and control of incompetent people.

"That on the 14th day of April, 1930, at the residence of Charles G. Miller, 1905 East 4th Street, Tucson, Arizona, the plaintiff committed adultery with one Bert Parker, a married man.

"That the plaintiff has become, and is, an unfit and improper person to retain the care and control of said child, and it is for the best interests of said child that its custody and control awarded under said decree of divorce to said plaintiff be taken from said plaintiff.

"That this defendant is informed and believes, and on such, alleges that the plaintiff threatens to move the said child from under the jurisdiction of this court, and this defendant fears that she may so remove the said child at any time unless restrained by order of this court.

"That it is for the best interests of said minor child that it be placed in the care, custody and control of a proper person or institution until further ordered by the court, and this petitioner alleges that [38 Ariz. 372] St. Joseph's Orphanage, of Tucson, Arizona, is a fit and proper institution in which to place said child to be cared for and educated until further order of the court; said child to be supported and maintained by ...


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