(dissenting in part). The decree of divorce in this action was entered in October, 1915. That decree provided: “That the care, custody and full control of said minor child, Margaret Lucile Thorp, be . . . awarded to the plaintiff. That the defendant be permitted to have access to such child at reasonable times and have the privilege of entertaining said child and having her with him as much as he desires during vacation periods and when said child is not attending school; and that should the plaintiff herein depart this life prior to the time that said minor child reaches her majority, then and in that event the custody and control of said minor child should be and hereby is, awarded to Mrs. E. W. Thorp, mother of said defendant.” In April, 1919, the trial court made an order, giving directions relating to the care of said minor child. This appeal is from such order. The only ruling complained of—the only ruling presented to this court for review on this appeal—is the making of that order. This is not a case like Rindlaub v. Rindlaub, 19 N. D. 352, 125 N. W. 479, 28 N. D. 168, 147 N. W. 725, where an appeal was taken from the decree of divorce, and this court, on a trial de novo, modified the decree, and specifically reserved jurisdiction to make further orders relating to custody of children. See 19 N. D. 392. In the case at bar no appeal was taken from the decree of divorce. The original subject-matter of the controversy was never brought Avithin the jurisdiction of this court. The only matter this court has before it is the order made in April, 1919.
*121While the order appealed from sought to accomplish two purposes, viz.: (1) To restrain the plaintiff from taking the child to a certain flat above a pool room; and (2) to restrain the plaintiff from permitting the child to associate with one Mrs. Grant, except when accompanied by the plaintiff, the two propositions were to some extent interlocked; and, of course, the trial court was confronted, and required to deal, with the matter as the situation then existed.
The lapse of time has somewhat changed the aspects of the matter, and the majoi'ity members have seen fit to treat each of the two provisions separately. I am inclined to agree with the majority members in so far as they say that that portion of the order which restrained the plaintiff from taking the child to the flat over the pool room has become moot. Nor, it appears that the term during which plaintiff proposed to occupy such flat expired long before this case was submitted to this court. I wholly disagree with the majority members, however, when they say that that portion of the order which restrained the plaintiff from permitting the child to associate with Mrs. Grant, except in the presence of the plaintiff, should be reversed. In my opinion this court cannot, upon the record before us, do otherwise than affirm the order in toto.
It should be borne in mind that the order before us was made by the same judge who originally tried the case and rendered the decree of divorce. The evidence in the case is not before us, but the trial judge knew what that evidence was. He knew the parties to the action, the child, and Mrs. Grant. He was familiar with all the surrounding circumstances. He is a resident of the city of Jamestown (a city having a population of about 6,600), and his chambers are in that city. He was familiar with the various places involved in this controversy. He knew the character and location of the home where the child has been living. He knew the location of the pool room and its surroundings. He knew what, if any, part Mrs. Grant took in the trial of the divorce action. No one doubts that his actions were actuated by the highest motives, and a sincere belief that the ends of justice would be best sub-served by ruling as he did. Nor can anyone deny that the district court had power to give directions for the care of the child. That power is expressly recognized by Comp. Laws 1913, § 4404, which provides: “In an action for divorce the court may before or after *122judgment give such direction for the custody, care, and education of the children of the marriage as may seem necessary or proper, and may at any time vacate or modify the same.” Comp. Laws 1913, § 4404.
In the decree of divorce the plaintiff was awarded the home which had formerly been occupied by the parties to this action. It is admitted that this is a good home, located in one of the most desirable residential sections of the city of Jamestown. It is admitted that the flat which plaintiff proposed to occupy with her daughter is located over a pool room, in the business section of the city. In the defendant’s affidavit it is said: “Said flat is located over a large and well-patronized pool room, cigar store, and soft drink establishment, and that the doorway to said flat from the main street of this city, opens out upon the sidewalk, at which place there frequently and almost continuously are congregated large bodies of men, and at and around the entrance of which place oftentimes there are loafing and loitering large numbers of young men of about town, having nothing in particular to do, and frequently vile and obscene language is used at and around said entrance and on said street by promiscuous persons, such as usually congregate around and about pool halls. That in order for said child to live in said flat, it will be necessary for her to pass in and out thereof, and by and through said crowds and to continually hear such obscene and indecent language, and witness such loud and boisterous conduct.”
There are, it is true, affidavits by the plaintiff and Mrs. Grant (the owner of the building), to the effect that the pool room is under the constant supervision of the peace officers of the city, and is a clean, sanitary, and well-conducted place. But surely this court cannot say, upon this record, that the condition related in the affidavit of the plaintiff is not the true one. That is a matter upon which the findings of the trial court should control.
What about the second provision of the order? As already stated, we have no means of knowing what connection, if any, Mrs. Grant had with this action at its inception. The evidence upon which the decree was based is not before us. Upon the oral argument it was stated by respondent’s counsel, and not denied by appellant’s counsel, that Mrs. Grant took some interest in the matter at and prior to the time the decree of divorce was entered. Tt was further stated that the *123defendant felt that she was largely responsible for the trouble between the parties to this action which resulted in the divorce proceedings.
In his affidavit, defendant, says: “This defendant verily believes that the said plaintiff is not fully aware of the embarrassment caused this defendant by allowing said Grant to associate with said daughter. That many times and frequently said Grant has the daughter of this defendant on the streets and in public places when her mother is not with her; that when said Grant is not with said child that the child is free and happy with her father at such times as she visits him or meets him; that frequently when this defendant meets said Grant on the street, whether with or without the child, said Grant appears to endeavor to display in the presence of said child and others and in public places, by facial expressions and an assumed contemptuous attitude, her dislike and hatred towards this defendant, and that at such times as she is so with the child, the child is very much embarrassed, due no doubt to the fact that she is now old enough to become aware of the enmity existing between defendant and said Grant, and that said daughter is embarrassed and hesitates to speak to this defendant when she is in the company of said Grant, either due to the fact that she feels that defendant does not desire her to be with said Grant, and that she therefore may think that he thinks that she is disloyal to him, or else she feels that she will be criticized or embarrassed if she speaks to her father in the presence of said Grant.”
In her affidavit, plaintiff says: “That never since the granting of said decree of divorce, has this plaintiff heard the said Mary E. Grant make any remark derogatory of the character of the defendant in the presence of the said minor child. That this plaintiff did, after the granting of said decree, erniion said Mary E. Grant against discussing the matrimonial difficulties of plaintiff and defendant in the presence of said child, . . . That this plaintiff did forbid the said Mary E. Grant from making any reference to said matter at all, or any reference to the defendant, in the presence of said child, and that this plaintiff has never at any time heard said Mary E. Grant mention this defendant in the presence of said child.”
In her affidavit Mrs. Grant specifically admits “that her feeling toward (defendant) at the present time, while not of vindictive hatred, is such as would condemn in the strongest terms possible his course of conduct toward the plaintiff and his behavior in general.”
*124Here Ave have Mrs. Grant’s admission under oath, voluntarily made, in an affidavit of her present feelings toAvards the defendant. We also have the sworn statement of the plaintiff that she “did forbid the said Mary E. Grant from making any reference to said matter (the matrimonial difficulties of plaintiff and defendant) at all, or any reference to the defendant, in the presence of said child.” We have the sworn statement of the defendant as to the conduct of Mrs. Grant toAvards him, and the conduct of the child towards her father Avhen she is accompanied by Mrs. Grant. Under the terms of the decree (which has never been assailed) the defendant Avas “permitted to have access to such child at reasonable times,” and was accorded “the privilege of entertaining said child and having her with him as much as he desires during vacation periods and when said child is not attending school.” The decree further provided that in case plaintiff died before the child attained majority, defendant’s mother should haAre the custody and control of the child. There is no contention that the provisions of the decree Avere unsatisfactory. Neither party appealed therefrom. It is admitted that the defendant has fully complied with the terms and proAdsions thereof; and the proof shows that he has made contributions toAvards the support of his daughter, in addition to those prescribed by the decree. Gan it be said upon the record before us that it Avas not necessary to make the order appealed from in order to preserve to the defendant the rights accorded to him by the decree ? Can it bo said that that order is not conducive to the welfare and happiness' of the child? Why did the plaintiff find it necessary to "forbid Mrs. Grant” to make “any reference to the defendant” before the child? Is it possible for anyone Avho entertains such feelings for another as Mrs. Grant’s affidavit sIioavs that she entertains towards the defendant to conceal those feelings from a child as old as the one involved here? Under the circumstances Avas it wise for, Avould it be conducive to the Avelfare asid happiness of, the child to be so placed that she Avould be in daily coiitact with Mrs. Grant ? Would this be fair to the defendant, or Avould it be fair to the child ? These, and similar questions readily suggest themselves, and probably siiggested themselves to the trial court. The trial court,—not this court, Avas charged Avitli the duty of givi3ig “such direction for the custody, care, and ediication of the child as might seem necessary and proper.” Section 4404, supra. The per*125formance of this duty required the exercise of judgment upon matters not strictly judicial in their nature. By the very nature of things men of equal intelligence might differ as to what directions should be given for the care and education of a child. It is a matter of common knowledge that parents, both equally devoted, frequently differ on matters of that kind. Clearly the power conferred by § 4404, supra, is a discretionary one. The discretion should be exercised with due regard to the welfare of the child and the rights of the parties. 14 Cyc. 808. The presumption is that the trial court exercised its powers properly. This court has no right to substitute its judgment for that of the trial court. This court can interfere only where it is clearly shown that the discretion vested in the trial court has been abused. And whoever asserts an abuse of discretion has the burden-of presenting to this court a record affirmatively showing that such assertion is true. Erickson v. Wiper, 33 N. D. 193, 225, 157 N. W. 592. In my opinion the record in this case wholly fails to show any abuse of discretion.