Wells v. Wells ( 1982 )

BARNES, Vice Chief Justice:

On May 16, 1978 Louis Wells appellant in the current proceeding, filed a petition for separate maintenance. In response, Doris Wells, now appellee, filed a cross-petition for divorce. Doris Wells was awarded custody of the three (3) minor children in a divorce decree granted on August 10, 1978.

On July 17, 1979 Louis Wells filed a motion to amend the decree requesting custody of the children. By agreement the decree was amended on August 12, 1979, giving the appellant temporary custody until January 1,1980. On March 4,1980 the appellant filed a second motion to amend decree requesting custody of the children. The ap-pellee filed a response to appellant’s motion and filed a motion thereon to increase child support. On August 6, 1980 a hearing was held concerning appellant’s and appellee’s motions.

At the hearing, Louis Wells testified that he filed this motion to regain custody because his ex-wife was living with another man out of wedlock. He also stated that he and his ex-wife had discussed the matter and in these conversations Doris Wells informed the appellant that her living arrangements were not his concern. She also stated that she favored this living arrangement because in the event the relationship did not last there would not be any problems with divorce. Appellant also testified that his children objected to the arrangement and were dissatisfied with their residence.

After this evidence was presented the appellee demurred to the evidence. The trial court sustained the demurrer and appellant appeals from that order.

Appellant’s first proposition of error is that the trial court erred when it sustained appellee’s demurrer. This is an action of equitable cognizance and in such an action a demurrer to plaintiff’s evidence will be treated as a motion for judgment, and in passing on such demurrer, the trial court should weigh and consider all the evidence submitted, whether favorable to plaintiff or not.¹

Changes in custody must be justified on the basis of the best interests of the child.² The burden of showing such interests is on the party seeking change.³

In past cases we have stated that one of the factors to be considered in determining a child’s best interest is the moral environment.⁴

We find that the appellant made a prima facia case for change of custody. Since no further testimony was offered by the parties the trial court erred in granting appellee’s motion for judgment as such judgment was clearly against the weight of the evidence.⁵ We find the proof called for an in-depth judicial assessment of the fitness of the mother’s home which the children were compelled to share with her non-spousal mate. Since appellee has had no opportunity to present her evidence, we reverse and remand with instructions to grant a new trial and proceed in accordance with the views herein expressed.⁶

Because of our above stated disposition of this case, we find it unnecessary to address appellant’s other propositions of error.

Appellee has cross-appealed the trial court’s denial of her motion to increase child support.

The only evidence presented in support of the motion was her testimony that he had received a substantial wage increase subsequent to the divorce. Mother argues that this showing was sufficient to justify an increase in child support because in cases such as Miller v. Miller, Okl., 383 P.2d 873 (1963), the court allowed the reduction of child support payments based on decreased earning capacity. The order affirmed in Miller was supported by evidence concerning several factors relevant to child support and was not based solely upon the changed financial circumstances of one party. Miller, supra at 875, 876. Here there were no other factors presented. We therefore find the trial court did not err in denying mother’s motion to modify the amount of child support.

REVERSED.

HODGES, HARGRAVE, OPALA and WILSON, JJ., concur. IRWIN, C. J., and LAVENDER, SIMMS and DOOLIN, JJ., dissent.

1 . Bridges v. Bridges, 544 P.2d 493 (Okl.1975).

2 . Stanfield v. Stanfield, 350 P.2d 261 (Okl.1960), Jackson v. Jackson, 200 Okl. 333, 193 P.2d 561 (1948).

3 . Gibbons v. Gibbons, 442 P.2d 482 (Okl.1968).

4 . David v. David, 460 P.2d 116 (Okl.1969).

5 . Snow v. Winn, 609 P.2d 678 (Okl.1980); David v. David, 460 P.2d 116 (Okl.1969).

6 . Geb v. Wilkins, 399 P.2d 456 (Okl.1965).