Citation Numbers: 36 S.W.2d 54, 237 Ky. 664
Judges: OPINION OF THE COURT BY JUDGE DIETZMAN
Filed Date: 2/27/1931
Status: Precedential
Modified Date: 1/12/2023
Affirming.
The appellant and appellee, plaintiff and defendant respectively below, were divorced by a judgment entered in the Laurel circuit court on the 13th day of March, 1929. By the terms of that judgment, the plaintiff was awarded the divorce she sought and the care, custody, and control of the infant child of the parties, Mary Ann Stansberry, then about 1 year old, together with alimony and the sum of $10 a month for the support of that infant child. The custody and control of four other infant children of the parties, ranging in age from 2 to 9 years, were awarded to the appellee, each party being allowed at all reasonable times to visit the child or children in the custody of the other. On the 4th day of November, 1929, the appellant filed in the divorce action her motion to modify this judgment to the extent that she be awarded the care, custody, and control of all of the infant children, and that appellee be required to pay her a suitable allowance for their support. The appellant's motion was grounded on the allegations that since the divorce the appellee had intermarried with Mary Marion, who, as appellant alleged, was the one who had broken up the *Page 665 marriage of appellant and appellee and whose reputation for morals was bad, and that Mary Marion, now Stansberry, as stepmother of these children, was an unfit person for the children to associate with. The response of the appellee was a denial of these allegations, coupled with affirmative allegations to the effect that the appellant was not a fit and proper person to have the care or control of these children. Testimony was heard orally before the court. That of the appellant was to the effect that the general reputation of Mary Marion prior to the divorce was not good, but none of appellant's witnesses undertook to say that they had heard anything detrimental to the character of Mary Marion since the divorce and since her marriage with the appellee. None of appellant's witnesses undertook to state anything specific to the detriment of Mary Marion, their testimony being confined solely to her general reputation prior to the divorce. There was no showing whatever that the children in the custody of the appellee were not receiving the best of attention and care. The testimony of the appellee was to the effect that when the appellant had her children and prior to the divorce she had neglected them very much, and that, indeed, when she and appellee separated, the children had been neglected to such an extent that their heads and body were covered with lice. Appellee further showed that appellant had no suitable place to take these children, that he was taking care of the children and sending them to a good school, and that his present wife was of good character and was devoted to the children and caring for them in the best of fashion. He also introduced evidence to show that appellant's reputation for virtue and chastity prior to the divorce was bad. The court, when he came to pass upon the motion, made a statement, which appears in the record, that the judgment which had been entered in the divorce action, so far as it pertained to the care and custody of the children and alimony, was, in truth, an agreed judgment, and that under all the facts and circumstances of this case, and being familiar as he was with the record in the divorce case, he did not think that it was for the best interest of the children to take them away from their father. He therefore overruled the motion of the appellant, and from that order this appeal is prosecuted.
It is settled that in matters of this character the court will be guided by what it conceives to be for the best interest of the child. Simmons v. Simmons,
The judgment overruling appellant's motion to have the custody of the infant children mentioned taken from appellee and given to her is affirmed.