(dissenting). This case illustrates the unfortunate situations that frequently develop when parents of children are divorced. It also demonstrates the incongruity of having different divorce laws in the various States of the United States, with the opportunity for citizens of one State to resort to another to secure divorces which may be recognized in one State and not in others. But these are existing conditions, perhaps brought about by defects in the law, which we must deal with in order to solve the troublesome questions of custody.
We must be alert, in face of the resentment which naturally arises against such conditions, to avoid decisions imposing harsh restrictions on the innocent victims of the divorce.
Relator and respondent were married when respondent was eighteen years of age. After living together for several years a separation ensued, brought about, respondent claims, by relator’s cruelty. Thereafter respondent resorted to the State of Nevada and secured a divorce without obtaining personal service on appellant. Later she remarried in Nevada and resided in England with her second husband. After a lapse of several years her second husband obtained an annulment of the second marriage on the ground that the Nevada decree of divorce from appellant was invalid.
Respondent came back to the United States and has since married a third time, again in Nevada.
Fifteen years have elapsed since the separation of these parties. In this period custody of the child of the marriage was divided between the parents, but was largely with appellant, the father. On several occasions the parties resorted to the courts for directions concerning the child’s custody. In disposing of these applications the courts of this State saw fit at times to criticize the conduct of the mother resorting to another State for divorce. The boy has grown to be almost seventeen years of age. He is well through his high school course. He has been thoroughly informed of the marital experiences of his mother. In fact, the father has taken pains to call to his attention criticism of his mother contained in decisions of the courts. Nevertheless, the boy has seen fit repeatedly and -unalterably, in and out of court, to evidence his desire to live with his mother.
*395In a very short time the boy will be able to make a choice over which the courts shall have no control. Under such circumstances, especially where he has shown himself to be intelligent and well behaved, I think the boy’s desire should be granted, unless it appears that it is necessary to deny it in order to promote his welfare. I see no such necessity in this case.
We cannot reasonably say that merely because a wife and mother has secured a divorce' without personal service of process on the husband, but on grounds that other States have seen fit to recognize as sufficient, that to grant her custody of her child would injure the child’s welfare. To do so would be wholly unwarranted. The merits of the controversy between appellant and respondent might depend largely on the question of the extent of the alleged cruelty of the appellant which caused the first separation. This is beyond disposition on the merits at this time. In this case there is no substantial ground for criticism of the mother’s conduct other than her alleged disregard of the laws of this State. She asserts she had the right to take up a marital domicile in Nevada, and that the courts of that State thereby acquired jurisdiction over appellant. Assuming she is in error with respect to this, and that her present position is inconsistent with that previously taken by her, what she did from time to time was the result of advice of eminent counsel.
The records present no proof that respondent is other than a cultured lady of good character and entirely worthy of the trust which custody of her child would impose on her. True, the father is likewise a gentleman of good character and high educational attainments who has given constant attention to the Well being of his son. But the circumstances require a choice between two parents who are separated. The father has had far more opportunity to win the boy’s affection than has had the mother. Yet he has not been able to prevent his boy from preferring to be with his mother. This is not difficult to understand under the present circumstances, for it is quite apparent that the father is possessed of extreme bitterness over his marital experience, which he, unfortunately, has not hesitated to display in the presence of his son. This, no doubt, is what has caused the son to rally to the support of his mother and has resulted in the preference which the boy now shows. We have no proof that any undue influence enters into the boy’s choice. He is of sufficient maturity to warrant our respecting his choice.
While I agree with the view of the majority that the form of the order which was made herein, permitting a reference in the event one of the parties secured the expense thereof, is to be criti*396cized, we cannot say that in this case it has resulted in an injustice, for the decision arrived at is justified, in the main, by the proof.
It is my view that we can best dispose of this case by having the struggle over this boy’s custody ended now by permitting him to five with his mother, with the requirement that he make regular visits to his father. Both parents should co-operate in ending all controversy over the son, for this constant struggle will injure him if permitted to continue. Although the boy has chosen to five with his mother, there should be provision in the order that the father direct his son’s education, for he has done so to date with success. The mother should be permitted to control in other respects. The question of maintenance is not of importance because of the independent means of the mother, but it seems to me that the father should pay for the boy’s education and the mother for the remaining expenses.
With these modifications, I vote that the order be affirmed.
Order reversed, respondent’s motion in all respects denied, and relator’s cross-motion granted to the extent stated in the opinion, with costs and disbursements to the appellant; and the other terms of custody contained in the order of February 25, 1936, reinstated, except that provision 6 therein is modified as stated in the opinion. Settle order on notice.