The parties to this action were divorced July 17, 1937, and in the decree the custody of their daughter was awarded to the father, who is respondent here. December 13, 1937, appellant, the mother of the child, moved the district court for an order modifying the decree and awarding the custody of the child to her. A trial was had resulting in findings of fact and conclusions of law and an order. The conclusions are as follows. *Page 309
"I. That the defendant, Bennie P. Krieger, is entitled to retain the absolute care, custody and control of the minor child of said parties hereto, Claire Arlene Krieger, save and except that said decree should be so amended as to provide that the plaintiff, Hazel I. Krieger, may visit said minor child at reasonable times and hours at the home of the said Bennie P. Krieger.
"II. That plaintiff is not a fit and proper person to have the care and custody of the minor child of the parties.
"Dated this 7th day of January, 1938."
The court ordered that the decree of divorce be amended by adding the following:
"Provided, however, that the plaintiff, Hazel I. Krieger, may visit said minor child at the home of said defendant at any reasonable time or hour."
This appeal is from the order, and appellant complains of the action of the district court in refusing to award the custody of the child to her.
May 31, 1937, appellant wrote the following letter to respondent's parents, which is set out in full in the findings of fact. The action for divorce was commenced June 2, 1937.
"Moscow, Idaho "May 31, 1937
"Dear Folks:
"I suppose you think I am never going to answer your letter but at last I am.
"How are all of you? Well, I hope.
"I am getting along fine. Am still pretty nervous but will be o. k. in time I guess.
"Well, I have something to tell you.
"Bennie and I have separated. It isn't any of his fault. He has always been good to me in every way. He has the baby but has promised to let me see her when ever I wish. I am writing to tell you to spare him a little so please don't ask him questions or talk about it as it will only hurt him more.
"One other thing I would like to ask of you if I may, that is not to talk to baby about me as it will hurt her too, and she still loves me some. I love her with all my *Page 310 heart but I can't be mean enough to take her from her Daddy even if I could.
"Bennie wants me to tell you everything, so altho it takes a lot of nerve, and I still have some pride I'll do it. I haven't loved him for a good long time. He doesn't believe that, but he wants me to tell you the truth so there it is.
"Some place in this world there is a true mate for each of us and I have found mine.
"Now, think what you will of me, but I have been honest in telling him at last, and only regret I didn't do it several years ago, but have always thot if you make your bed, lie in it.
"Well, there isn't much more to say, so will close.
As Ever HAZEL"
As above stated, the decree of divorce was granted July 17, 1937, and immediately therafter appellant left in company with John F. Hager. They went into the state of Washington, where, August 6, 1937, they were married.
This closely coupled train of events leads to the inevitable conclusion that appellant referred to the man who was then her lover and is now her husband when she wrote, "Some place in this world there is a true mate for each of us and I have found mine."
Referring to appellant's conduct, disclosed by this record, it is said in the foregoing opinion: "Such conduct may be ethically the subject of gossip, censure and disapproval but it is certainly not a circumstance which disqualifies a mother for the care and training of her child." I do not subscribe to that doctrine. Such conduct is violative of the public policy of Idaho, expressed in I. C. A., sec. 31-207, as follows:
"A subsequent marriage contracted by any person during the life of a former husband or wife of such person, with any person other than such former husband or wife, is illegal and void from the beginning unless:
"1. The former marriage of either party has been annulled or dissolved more than six months; . . . ." *Page 311
While such conduct may raise debatable questions of criminal law, there should be no difference of judicial opinion when it is considered from the standpoint of good citizenship or of common decency.
I am in full accord with the time-honored rule expressed in the foregoing opinion to the effect that the well-being of the child should guide the court in determining who shall have its custody. This is not to be decided by determining which of the parents is best able, financially, to provide for the child, for plastered walls do not always make a home. The controlling questions, which were correctly decided by the district court in this case, are: Which of these parents is best suited to be the guardian of this child during the period of her minority? From whose custody will she emerge the better woman?
In answering these questions, it is well to have in mind that this girl is eight years old; that if custody of her is awarded to her mother, her stepfather will be the head of the family in which she must grow up and, although the majority of this court may be misled as to who broke up the little home in Troy, she will not be deceived about it. It follows, I think, that there is no chance for her to be happy, nor to develop into the high type of citizenship she has a right to and would attain in a better environment.
Nothing is to be gained by sending this case back for a new trial, for which neither party has asked. There is no likelihood that the taking of further testimony will improve the appearance of the miserable picture now before us. I am in favor of affirming the order appealed from.