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Burk v. Burk

Supreme Court of Arizona

April 25, 1949

BURK
v.
BURK

Appeal from Superior Court, Maricopa County; Edwin Beauchamp, Judge.

Suit for divorce by Claude E. Burk against Mary Margaret Burk, wherein the plaintiff was awarded a decree of divorce granting the plaintiff custody of minor children of the parties for nine months of each year. From a decree awarding the defendant complete custody of the children, the plaintiff appeals.

Decree reversed.

Carl Tenney, of Phoenix, for appellant.

Harold R. Scoville and Charles A. Stanecker, both of Phoenix, for appellee.

Johnson, Superior Judge. Udall, Stanford, Phelps, and De Concini, JJ., concur.Note: Due to illness of Chief Justice ARTHUR T. LA PARADE, the Honorable J. MERCER JOHNSON, Judge, Superior Court, Pima County, was called to sit in his stead.

OPINION

Johnson, Superior Judge.

[68 Ariz. 306] On October 15, 1945, the plaintiff, Claude E. Burk, filed a complaint in the superior court of Maricopa county against the defendant, Mary Margaret Burk, seeking an absolute divorce, a division of the community property, and custody of John Taylor Burk, age 9, and Kenneth Claude Burk, age 7, minor children of the parties, and requesting the court to place the children in the custody of plaintiff's parents until his return from overseas service.

Three months later an amended complaint was filed seeking the same relief as in the original complaint except asking [68 Ariz. 307] the court to award the minor children to him for nine months and to the defendant for three months of each year. On the same date the defendant filed a general denial to the amended complaint.

The parties at the same time filed a property settlement agreement wherein they agreed that plaintiff should have custody

Page 584

of the minor children for nine months of each year, and the defendant should have the children during the months of June, July, and August of each year, and asked the trial court's approval of such arrangement.

The matter was tried on January 10, 1946, upon the testimony of plaintiff and one witness, defendant having waived her right to introduce any testimony, and on said date a decree of divorce was granted to plaintiff and the property settlement of the parties was approved as to the division of the community property. Also the court approved the agreement as to the custody of the children.

Defendant on July 21, 1947, filed a petition seeking a modification of the original decree by asking for complete custody of the minor children, and ...


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