Andersen v. Andersen , 75 Wash. 2d 779 ( 1969 )

Finley, J.

(dissenting)—The problem posed by this case may be easily illustrated by setting out the findings of fact of the trial court relating to the condition of the children’s home life at the date of entry of the change of custody.

V.

That since moving to Pierce County the [appellant] has lived in a house . . . originally leased in the name of Herbert Cole and wife, later changed to Herbert Cole and Deanna Chamberlain; that Herbert Cole has given that address as his address at his place of employment and for driver’s license purposes; that he has spent much time at that address since January of 1966; that two of the neighbors believe that the [appellant] and Herbert Cole have been living together in the house at that address; and that such a belief is justified by outward appearances, and it is the belief of the Court.

VI.

That because of her conduct with Herbert Cole the [appellant] is not presently fit to have the custody of the minor children of the parties; and that the [respondent] is a fit and proper person to have such custody.

A careful examination of the record indicates that insofar as facts were placed in evidence concerning the condition of the children and their behavior, an overwhelming preponderance of the testimony indicates that (in the opinion of the neighbors and the school authorities) the ■children were well-behaved, successful in school, and the •objects of careful and loving.maternal attention and were well cared for within the limits of the appellant’s ability in the light of admittedly inadequate and sporadic support payments received from the respondent.

The even less than a scintilla of evidence offered against appellant is such that the majority opinion is reduced to reliance upon the trial court’s discretion. The oral opinion of the trial court occupies five pages of transcript. It commences with a rather dubious presumption that because the appellant did not contest the original divorce decree she had no defense as to grounds or fault. It states:

The one thing that is not in issue is the quality of the physical care that the children are getting. The thing that is in issue is the overall judgment and perhaps conduct, but certainly the overall judgment of [appellant].

Two and one-half pages of the opinion are then devoted to the ostensible “sixty four dollar question”: “Was Herb Cole living there, at least a substantial part of the time?”

It appears from the only indicia before this court, the findings and the oral opinion, that the sole determinative factor in the transfer of custody was the supposed illicit relationship between appellant and Mr. Cole. There is no finding as to neglect or physical mistreatment of the children, and little, if any, evidence to support such á finding. There is no evidence in the record to support a finding that appellant’s relationship with Mr. Cole was damaging to the children. On the contrary, the school authorities and neighbors testified that the children were happy and normal. The trial court engages in some surmise and conjecture, but there is no expert testimony attempting to establish the instability or stability of the mother. Apart from an .examination in chambers of the eldest child, which was principally directed to the existence of the relationship with Cole, no effort seems to have been made to establish the subjective effect of the relationship with Cole on the children.

The trial court is allowed a broad discretion in custody matters, and a reversal of its decision requires a showing of manifest abuse of that discretion. Applegate v. Applegate, 53 Wn.2d 635, 335 P.2d 595 (1959). We are not disposed to retry custody determinations in this court. But reliance upon an erroneous theory of law is reversible error.

This court has held that a continued adulterous relationship is not, per se, enough to disqualify a parent from receiving custody of children. Westlake v. Westlake, 52 Wn.2d 77, 323 P.2d 8 (1958); Norman v. Norman, 27 Wn.2d 25, 176 P.2d 349 (1947). The conduct, established by the scantiest of evidence, in this case falls far short of adultery.

It may be that the mother’s conduct in this case could be contrary to the welfare of her children. However, it appears to me that is a factual question which would be better explicitly determined than presumed from a somewhat dubious judicial assumption as to adverse effects upon the children attributed to the romancing of appellant-divorcee by Mr. Cole.

It is most difficult for me to avoid an impression that the decree was entered upon the erroneous theory that a finding of the illicit relationship would, per se, support the transfer of custody. There are no other findings to support the decree. Normally it should and would be reversed.

However, 18 months have passed since the transfer of custody. In that time, circumstances may well have changed. Disturbance of established familial relationships should be minimized, and should never occur because of the fortuities of legal proceedings. Children should not be uprooted because this court is unaware of intervening events, or because it requires on review a fuller exposition of what a trial judge felt better left unsaid.

These factors combine to convince me that the proper remedy in this case, considering foremost, as we should, the welfare of the children as well as the subsidiary interests of both parents and undoubted interests of the state as parens patriae, is á remand for a full hearing in the light of this opinion and the existing circumstances at the time of hearing. Cf. Kehus v. Euteneier, 59 Wn.2d 188, 367 P.2d 27 (1961) (dissent).

This is in no sense an easy case for any judge or for any court. One cannot escape a feeling that counsel, as officers of the court, owed to it more than they have seen fit to tender. Such a feeling may well explain the trial judge’s request to the prosecuting attorney for an investigation of the children’s living circumstances. It would be hoped that upon. a new hearing some attempt could be made to delineate for the court through expert testimony or otherwise the realistic potential of both homes in relation to the best interests and welfare of the children.

For the reasons given above, I would reverse and remand for a new hearing.

Hale, J., concurs with Finley, J.

Hill, J. (concurring specially in the dissent)—Without concurring in all of the statements made by Justice Finley in his dissent, I do concur in the disposition of the matter suggested therein.

While I question whether the change in custody from that of the mother to that of the father should have been made, it has now been a fait accompli for 18 months, and more harm than good might result by again changing custody.

The new hearing should not be concerned with the charges and countercharges between the parties, but should be an attempt, as. Justice Finley puts it, to appraise “the realistic potential of both homes in relation to the best interests and welfare of the children.”