Freeland v. Freeland ( 1916 )

Fullerton, J.

In an action for divorce brought by Fred B. Freeland against Myrtle B. Freeland, a decree was entered in favor of plaintiff on August 4, 1914, and the custody of their minor child was awarded to each parent alternately for periods of six months, the father being given the custody for the first six months. On January 7, 1915, the plaintiff filed a petition for a modification of the decree as to the custody of the child, on the ground that the defendant, by reason of misconduct occurring subsequent to the decree, was not a suitable person to have the custody of the child. The defendant filed an answer and cross-petition asking the exclusive custody of the child. These petitions were heard before the judge who had granted the divorce and decreed the divided custody of the child. At the conclusion of the hearing, the judge found that there had been no change in the condition of the parties from that which existed at the time of the entry of the decree in the divorce action, and that the defendant was a fit and proper person to have the care and custody of the child in accordance with the terms and conditions of such decree. An order was thereupon entered dismissing the petitions of each party, and directing that the original decree remain in full force and effect. The plaintiff appeals.

The appeal presents but one question, namely, does it appear from the evidence introduced at the hearing that the trial court was guilty of an abuse of discretion in refusing to modify its original decree touching the custody of the child. It must be borne in mind that the petitions were heard by the judge who had tried and determined the divorce action ; that he was conversant with the facts developed in the divorce proceedings, and that he had the witnesses before him in the present action, and was in a better position to pass upon their credibility than is this court. Under such circumstances, we have heretofore held that an appellate court should not disturb the order of the trial court, unless it is made reasonably plain by the evidence that the welfare of the child requires it. Dyer v. Dyer, 65 Wash. 535, 118 Pac. 634; Rogers v. Rogers, 81 Wash. 502, 142 Pac. 1150; Simmons v. Simmons, 22 Cal. App. 448, 134 Pac. 791.

The proofs of the appellant were to the effect that respondent had been indiscreet in her conduct with men subsequent to her divorce. Nothing, however, was established showing moral turpitude on her part. But the fact that the conduct of a mother is not what others might think the most proper is not sufficient of itself to deprive her of the right to the permanent or periodic custody of her minor child. Mother love is a dominant trait in even the weakest of women, and as a general thing, surpasses the paternal affection for the common offspring, and moreover, a child needs a mother’s care even more than a father’s. For these reasons, courts are loath to deprive the mother of the custody of her children, and will not do so unless it be shown clearly that she is so far an unfit and improper person to be entrusted with such custody as to endanger the welfare of the children. In the present case, we are satisfied that no sufficient showing has been made for a modification of the original decree.

The judgment is affirmed.

Mount, Holcomb, Main, and Parker, JJ., concur.