Magill v. Magill

On March 4, 1924, an interlocutory decree of divorce was entered by the lower court containing, among other things, a provision that the infant daughter, Joyce MaGill, the only child of the parties, be given into the custody of respondent until April 1, 1924, and at that time into the custody of appellant for the next six months ensuing, and thereafter alternating between the parties every six months' period until the further order of the court. There was a provision also that appellant should pay respondent towards the support of the child, who was three years of age, the sum of ten dollars per month. There was a further provision retaining jurisdiction of the action for the purpose of making any suitable orders for the future support, care, custody and control of the minor child.

Prior to the expiration of the six months' period when the interlocutory decree would become absolute and final, on June 17, 1924, respondent filed a petition for a supplementary order to modify the interlocutory decree so as to extend the permanent custody and control of the child to respondent, subject to the right of appellant to visit the child at all reasonable hours and places, and that appellant be required to pay for the support and maintenance of the child the sum of twenty dollars per month. This petition was supported by the affidavit of respondent.

Upon the filing of this petition, an order was issued and a citation thereon directed to appellant to appear and show cause, on a day stated, why the decree should not be modified in accordance with the petition.

The matter came on to be heard in the court below on July 1, 1924, at which time appellant appeared in person and by his attorneys, and first moved that the petition be dismissed and the citation quashed, for the reason that the court did not have jurisdiction to hear and determine the matters alleged in the petition and that the petition failed to show a material change in the condition and fitness of the parties, or the requirements for the welfare of the child.

This motion was denied and the trial court proceeded to the hearing on the petition. The hearing resulted in the trial court making an order that the interlocutory decree theretofore entered be modified so that the care, custody and control of the minor child be awarded to the mother (respondent) until the further order of the court, the father to be permitted to visit the child at all proper times and places; and that until August 15, 1924, appellant to pay ten dollars per month towards the care and support of the child, and thereafter fifteen dollars per month.

Appealing from the order modifying the interlocutory decree, appellant contends that, in order to modify the former order respecting the custody of the child and the maintenance money, there must be a substantial change in the condition of the parties; citing White v. McDowell,74 Wash. 44, 132 P. 734; Beers v. Beers, 74 Wash. 458,133 P. 605; and Earling v. Earling, 117 Wash. 584, 201 P. 908.

It is true that in Earling v. Earling, supra, it was said, without citing any authority, that the trial court did not err in sustaining objections to evidence offered as to the competency of the respondent as custodian of the child relating to a period of time preceding the original decree of divorce.

But we have often said, as in the two cases in 74 Wn., cited by appellant, that the welfare of the child is the principal matter to be considered, or, where the welfare of the child would be promoted thereby, the court has power to hear and modify a decree with reference to the minor child.

In the instant case, the trial court had expressly retained jurisdiction over the custody and control of the minor child. The interlocutory decree had not become absolute and final, in any event, under the statute. We have said, even in cases where jurisdiction had not been expressly retained, that the custody and control of a minor child of parties to a divorce action is always within the control of the court.

Ruge v. Ruge, 97 Wash. 51, 165 P. 1063, L.R.A. 1917F 721;Holter v. Holter, 108 Wash. 519, 185 P. 598; Clark v.Clark, 110 Wash. 293, 188 P. 456; Wilkerson v. McGinn,110 Wash. 454, 188 P. 472; Sampson v. Sampson, 112 Wash. 1,191 P. 840; Sorge v. Sorge, 112 Wash. 131, 191 P. 817; Dellev. Delle, 112 Wash. 512, 192 P. 966, 193 P. 569; Ericson v.Ericson, 114 Wash. 485, 194 P. 234.

In Delle v. Delle, supra, we said:

"The question here is the custody of the children. The parties could not, by contract, and the court could not, in an original decree, make a provision relating to the custody of the children which would be controlling upon a subsequent hearing where their custody was involved. So long as there are minor children whose maintenance and welfare are provided for in the original decree, there is a continuing jurisdiction in the court to modify that decree, having regard to their welfare. Dyer v. Dyer, 65 Wash. 535. . . ."

Having carefully read all of the evidence in this case, we are thoroughly convinced that the trial court was amply justified in determining that the welfare of the child, Joyce MaGill, demanded that the decree be modified as it was.

The order appealed from is right and it is affirmed.

TOLMAN, C.J., FULLERTON, MACKINTOSH, and MITCHELL, JJ., concur.