Blackley v. Blackley

VAUGHN, Judge.

No findings were made as to fitness of either party to have custody of the children, the court saying only that defendant’s evidence was inconclusive and failed to show unfitness on the part of plaintiff. The court found: “ . . . that the plaintiff respondent has cared for the physical needs of the children, that both are well and healthy; that they have been properly schooled, and that they have been taken to Sunday School regularly, and have responded satisfactorily to all such training.” The court also found that, prior to plaintiff’s marriage to Daniel, Daniel spent the night in the home of plaintiff on Christmas Eve 1970 and on November 4 and November 5, 1971, one month before the marriage; that on numerous occasions Daniel' had taken what was described as naps of ten minutes to two hours duration in plaintiff’s bedroom; that before the marriage and after it Daniel had, with plaintiff’s permission, spanked the male child or “popped him on the rear” by way of correction or punishment. The court further found “that Bobby is old enough to understand the impropriety of Mr. Daniel’s antenuptial sojourns overnight in the home of plaintiff respondent and to resent the same; that the knowledge and recognition of these improprieties and the chastisement by his stepfather adversely affect him and will continue to do so; that it will be for the best interest of Bobby that the care, custody and control of him be given to his father, the movant”; “ . . . that Teresa Annette is seven years of age; that she appeared in Court with her stepfather, sat in his lap during part of the proceedings, appeared to be friendly or affectionate with him, and has not been shown by the evidence to have been spanked or chastised by her stepfather and is found not to be adversely affected by his relationship; that the Court finds that it is for the best interest of said Teresa that the care, custody and control of her continue to remain with her mother, the respondent, Mrs. Phyllis Daniel.”

The evidence is insufficient to support the judge’s findings that Robert has been and will be adversely affected because of the chastisement by his stepfather or his stepfather’s premarital visits with plaintiff. There was no evidence offered to support the finding, that it will be for the benefit of Robert to remove him from the custody of his mother, with whom he has lived for his entire life and who has been his sole custodian since the separation of the parties on 4 January 1966, thereby separating him from his sister. There is no evidence to support the finding that it will be to the child’s best interest to place him in the custody of defendant. Defendant testified in detail as to his nocturnal surveillance of plaintiff’s home but offered no evidence as to where or under what circumstances the children would live if placed in his custody. He did not testify that he wanted the children placed with him or offer evidence as to wishes of his present wife as to having the children placed in their.home. In his motion in the cause defendant did not ask the court to place the children with him but did ask the court to inquire into the conduct of plaintiff and make such orders regarding the custody of the children that might appear to be for their best interest.

The evidence is insufficient to show a change of circumstances affecting the welfare of the child so as to justify a modification of the prior orders awarding custody to the mother. The order of 5 June 1972, from which plaintiff appealed, is vacated. Earlier orders in the cause, which the order appealed from sought to modify, remain in full force and effect.

Vacated.

Judges Brock and Hedrick concur.