This appeal involves the custody of the minor child of William G. Tyler, the plaintiff in error, against the maternal grandparents, M.E. and Minta V. Oden, defendants in error.
On November 19, 1937, Estah V. Tyler filed her petition in the district court of Oklahoma county, against her husband, William G. Tyler, for divorce, and for custody of their minor child, Lee Ann Tyler, then three years of age. Service of summons was waived, and on December 3, 1937, a default decree was rendered against said William G. Tyler for divorce, custody of Lee Ann, and for $25 per month support money for said infant.
Estah V. Tyler passed away August 15, 1939, and on August 23, 1939, Tyler filed an application for an order for the custody of said child. The court granted said order, ex parte, but before the same was executed by the sheriff, vacated said order, and set Tyler's application for trial. The maternal grandparents of said child intervened by petition, and on September 8 and 9, 1939, the issues thus formed were tried, wherein the application of the father was denied and the custody of said child was given to her grandparents.
The record reflects William G. Tyler and Estah Tyler were married October 15, 1932, and of said marriage one child, Lee Ann, was born. About one year prior to granting of divorce, on account of extreme cruelty and failure on the part of the husband to provide for the support of his wife and child, the wife was compelled to take her baby and go to the home of her parents. She obtained employment and, with the assistance of her father, provided for herself and child until the divorce was granted, the husband failing to provide for either of them during this period of time.
After the divorce was granted, it was necessary, on two occasions, to call upon the husband and compel him to make the payments of child support as decreed by the court. Although he lived near the place where his child was staying, he failed to visit her for a period of from 60 to 80 days. There was testimony regarding the moral character of the father, evidence disclosing that he and a *Page 177 woman on one occasion pleaded guilty of having used a room for immoral purposes.
The trial court held that it was for the best interest of the child that it be left with its grandparents. In this case it is not a question of taking the child away from her father; that was done some three years before, when, by his own fault, the custody was given to the mother, and during the last three years the child had been kept by the grandparents.
It is impossible for this court to lay down a hard and fast rule of law by which to decide each and every case of this nature, but it must always base its decision upon the facts and circumstances surrounding each particular case.
It would serve no useful purpose for us to engage in a discussion of additional facts as disclosed by the record. We hold, from all the facts and circumstances, that the father is shown to be an improper person with whom to place the care, custody, and training of his infant child as against the maternal grandparents, who are shown by this record to be fit and proper persons to rear and train said child.
Judgment affirmed.
RILEY, BAYLESS, GIBSON, HURST, DAVISON, and ARNOLD, JJ., concur. OSBORN, J., concurs in conclusion. WELCH, C. J., dissents.