Eliason v. Eliason , 10 Wash. 2d 719 ( 1941 )

¹ Reported in 118 P.2d 170. Plaintiff commenced this action seeking a divorce from his wife and a decree placing the minor child of the parties under the custody of plaintiff's mother. A trial upon the merits resulted in a decree awarding a divorce to each of the parties, and placing the child in the custody of plaintiff's mother until the further order of the court. Defendant was reserved the right to visit her child at all reasonable and proper times and to take him with her on proper occasions. Defendant has appealed from that portion of the decree which took from her the custody of her son.

The principal assignment of error is that the court erred in refusing to award the care, custody, and control of the minor child to appellant.

This appeal presents but one question; namely, whether or not the trial court abused its discretion in refusing to award the custody of the minor child to appellant. The authority of the trial court to take children from their parents is contained in Rem. Rev. Stat., § 989 [P.C. § 7508]. Appellant contends, however, that this court is committed to the rule that children of tender years will not be taken from their mother unless it is clearly shown "that the mother is an unfit and improper person."Freeland v. Freeland, 92 Wash. 482, 159 P. 698; Prothero v.Prothero, 137 Wash. 349, 242 P. 1; Mason v. Mason, 163 Wash. 539,1 P.2d 885; Ostrander v. Ostrander, 176 Wash. 669,30 P.2d 658.

To narrate the evidence would serve no useful purpose. It is sufficient to say that appellant neglected her child on numerous occasions, and conducted herself in a manner unbecoming for a mother. That respondent may have been partially to blame does not mitigate the effect of her actions. It should be stated, however, that appellant was not shown to have been guilty of any immoral conduct.

[1] Nevertheless, we have always recognized the principle that the welfare of the child is of paramount consideration in ascertaining its custody. In re Day, 189 Wash. 368,65 P.2d 1049; Flagg v. Flagg, 192 Wash. 679, 74 P.2d 189. Furthermore, in cases of Burke v. Burke, 153 Wash. 97,279 P. 87, and Broesch v. Broesch, 159 Wash. 409, 293 P. 464, this court has, while not in any way disregarding the rule for which appellant contends, modified it in special cases in order to give precedence to the rule that the paramount consideration of the courts is the welfare of the child.

[2] In cases of this nature, we give great weight to the conclusions of the trial court. Consequently, its finding will not be changed unless an abuse of discretion patently appears. A careful search of the record convinces us that the court did not abuse its discretion in making the temporary award of appellant's son to his paternal grandmother. The court had all the witnesses before him; he was able to test their credibility and weigh their evidence in a manner denied to this court. From their behavior and attitude in the court room and from his intimate knowledge of many things concerning which the witnesses testified, he was able to arrive at a decision which satisfied him that the child should go to the grandmother until such time as appellant should prove to the court a determination to conduct herself in a manner in keeping with the duties of a mother.

At the close of the trial, the court indicated that if appellant could prove to him that she was conducting herself in a manner befitting to a mother, and that if appellant would request a return of the child at the end of one year from the signing of the decree, he would entertain her petition.

The judgment is affirmed.

ROBINSON, C.J., BEALS, and JEFFERS, JJ., concur.