Burke v. Burke ( 1929 )

This is an appeal from an interlocutory decree establishing the right of the defendant to a decree of divorce; awarding him the custody of the three minor children; the home, which is his separate property, and the community property which is of small value. To the plaintiff wife is awarded only her costs, an attorney's fee and $50 per month for the period of one year from the entry of the interlocutory decree.

The financial arrangement is not unreasonable if the custody of the children has been rightly fixed, and the contest here is chiefly confined to the issue of the custody of the children.

[1] It is quite unusual in these cases to find all of the children, especially when they are all daughters, awarded to the father, but this is an unusual case. The mother was not charged with immorality, nor does the proof lead to any inference of immoral conduct upon her part, and yet the trial judge, who seems to have been deeply impressed with his responsibility, was convinced, after seeing and hearing the witnesses, that the wife's mental attitude toward her husband and toward another was such as to call for the result reached.

After a careful consideration of all of the evidence, and after mature deliberation and pondering upon the distressing situation disclosed by the record, we can only regret that we are not endowed with sufficient wisdom to see any better solution than that which has been reached.

The judgment appealed from is therefore affirmed.

FULLERTON, PARKER, HOLCOMB, and BEALS, JJ., concur.