Douthitt v. Kinman

O’CONNELL, J.

This is an appeal from an order denying defendant’s motion to modify a divorce decree.

Plaintiff and defendant were divorced on May 1, 1963. At that time their daughter, a minor child, was awarded to plaintiff. On January 31, 1966, defendant filed a motion to modify the decree so as to award the custody of the child to him.

Defendant charges plaintiff with immoral conduct rendering her unfit to have custody of the child. The principal charge is that on October 2, 1965 plaintiff entered into a purported marriage ceremony with John Douthitt when he was still married to Vivian Douthitt. Subsequently, John and Vivian Douthitt were divorced and thereafter John Douthitt and plaintiff were lawfully married.

The trial court held that “there is no evidence, at least no evidence of a convincing nature to this court, that the plaintiff has been guilty of any other wrongdoing other than entering into this purported marriage on October 2nd.” We agree with this conclusion of the trial court. We also concur in the trial court’s conclusion that plaintiff’s indiscretion in entering into a marriage ceremony when John Douthitt was still married to another woman is not sufficient considering the other circumstances of this case to constitute the basis for awarding the custody of the child to defendant.

The decree is affirmed.