Norman v. Norman

¹ Reported in 176 P.2d 349. The plaintiff husband and defendant wife were married in Kansas on February 22, 1937. He was thirty-four years of age, and she was nineteen. He was and is a mechanic employed by construction companies, which resulted in their living in twenty-six different places since their marriage. They came to Vancouver, Washington, in the early part of 1942, where they both worked in the shipyard. At the time of the trial, she was employed as a postoffice clerk in charge of substation No. 3 in Vancouver, being an employee of the drug company in which the substation was located. She also boarded two of his brothers, one for about a year and one for about two years. She did their washing, ironing, and clothes mending. The money thus derived and her wages went into the common savings.

Concerning the boarding experience, she testified as follows:

"MR. SCHAEFER: Q. Did you kick about every member of his family that lived with you? A. Yes, I did kick. Q. About both of them? A. No, his two brothers that lived with us were twins and they were as opposite as day and night, and the one that is in the Navy in my opinion is a perfect gentleman, because when he was in the home, I never washed a dish that he wasn't right there to dry. He would wash. He would hang clothes on the line. He would make the beds — whatever he could do — but the other one was just opposite. Q. What did he do to annoy you? A. He used to chew tobacco and open the front door and spit. He would spit all over the place, back porch and steps. I had a flower bed — and I told his brother that next time he spit on the porch he was cleaning it up. He would take a bath once in three weeks. When he would get there — like a big fat hog — he would take off his trousers when he went to bed at night. I was actually ashamed to hang the sheets on the clothes line. He was the most finicky in his eating that I have ever known. Every morning he wanted saddle blankets. The other meals he would want meat, potatoes, gravy and beans boiled, navy beans. One of my most embarrassing moments, I had guests for Christmas dinner and I had my new Haviland China and I had Mrs. Benson, here in the court room, as one of the guests. He sat down and said, ``You are not going to feed me these God damned worms.' So he said, ``I want something to eat,' and he said, ``Maw, you haven't got the bread on the table.' And I said, ``I haven't got the bread on the table because we are having hot rolls.' In passing him anything he would put out his hand and shove it away, never passed a plate of food on to anyone else. Thanksgiving after baby was born I had turkey, dressing, cranberry sauce. I didn't have mashed potatoes and gravy but had sweet potatoes. He asked where they were. I said I didn't have them. He gets up and gets a glass of water and opens up some pork and beans. He ate the white meat of the turkey. If we had muffins he wouldn't eat them. If the eggs weren't cooked right he would push them away. I never liked it, but Mr. Norman said it was his home and he was going to have who he pleased there. Q. How long did that brother stay? A. Altogether about two years. That was the one that he told me he thought more of him."

The total amount of social life or recreation he provided for her in Vancouver was one dance, five shows, three ice hockey games, and one ice show. The question of recreation was the source of many arguments between them. He enjoyed fishing and engaged in it when opportunity afforded. He testified that in a year and a half they had five acts of sexual intercourse.

About two and a half years before the trial, she met a man by the name of Gott, who was on good terms with her husband. Gott had accompanied them to three of the shows they had attended, was a frequent visitor at their house for dinner with the husband's consent, and was known by him to be with her on many of the occasions when the husband went fishing. She fell in love with Gott and committed adultery with him over a protracted period. She testified Gott was the father of the child here involved and that she hoped to marry him in the future.

The court found, and it is amply supported by the record, that she is a good cook and housekeeper, has a deep affection for the child, and takes good care of it. The court awarded him a decree of divorce and granted her the custody of the child.

He appeals and assigns as error the court's finding that she is a proper person to be given custody of the child and in not giving the custody to him. His contention can be stated by quoting from his brief:

"In this case the trial court apparently placed a judicialstamp of approval on such conduct.

"It is our feeling that to permit this decision to stand as the law of this state would judicially lower the moral standards that have heretofore prevailed and announce to the world that henceforth the standards of morality can be entirely abandoned and that a mother guilty of such misconduct may still be awarded custody of a child in spite of the fact that the father is a fit and proper person with all necessary facilities and surroundings for raising the child."

[1] This contention is a non sequitur. We are not here concerned with the question of either punishment or approval of the conduct of a party to this action. As the court so aptly stated in its memorandum opinion:

"This question of disposition of custody of the child is not to be approved from the point of view of the supposed rights of the father and mother or with any ideas of punishing or rewarding one or the other on account of conduct, but rather from the point of view of the welfare of the child. This child is still very young, scarcely more than a baby, and under well-recognized principles its custody should go to its mother unless the court is able to find that that would not be consistent with its welfare."

This is a correct statement of the approach the court should make in performing its duty.

The issue here is well stated in the court's memorandum opinion:

"The position of the plaintiff is that the defendant is an unfit person to be given the child's custody but this charge is based almost altogether upon her unfaithfulness to her husband."

The memorandum opinion continues:

"The evidence does not disclose that she was lacking in any way in the care of the child or affection for it. In fact, she seemed to be an exceptionally good mother. She is a good housekeeper and cook and always cared for the child unusually well. Also, the evidence seems to indicate that she has a deep affection for the child. . . . In reaching this conclusion I give no weight whatever to the claim of the defendant that this child is not the child of the plaintiff."

The instant case is not similar to the case of Bornstine v.Bornstine, 21 Wash. 2d 104, 150 P.2d 60, where the minor children were awarded to the father, for in that case the mother, in order to consummate a marriage with another, abandoned her children to the father, whom she deserted. In the instant case, the respondent sought a reconciliation with her husband upon any terms in order to be with the baby. He prescribed as conditions to a reconciliation that she have a baby by him within one year, that she couldn't drive the car, that she couldn't have more than five dollars, and that someone had to live with them in their home for one year. She accepted these terms and brought her clothes back to the house the next day, which was Saturday. He had told her he would take her to the beach the next day. Sunday she prepared a picnic dinner, took care of the baby, and was waiting for his brother and his brother's wife to get up when he told her to pack her suitcase and get out, as his brother wouldn't let his wife live in the same house with her and that he "thought a hell of a lot more of him than I do of you." After crying for an hour, she packed her suitcase and left.

[2] The issue in this case is this: Is the respondent, who, although not promiscuous, admits she is an adulteress, necessarily, by reason of that fact alone, conclusively shown to be an unfit person to have custody of her child? The trial court, in awarding custody of children in divorce actions, must consider many imponderable factors bearing upon the future welfare of the children. The adultery of a mother is, of course, a very weighty factor, but we are not prepared to say that it excludes the consideration of all other factors and is alone completely determinative of the issue. We are not prepared to say that the trial court has abused its discretion in the instant case.

The judgment is affirmed.

MILLARD, C.J., STEINERT, ROBINSON, JEFFERS, CONNELLY, and ABEL, JJ., concur.