delivered the opinion of the court.
A controversy having to do with the custody of a female child aged about three years (two and one-half years at the time of hearing). The parties are the divorced parents of the child, and the finding and judg-ment below was in favor of the mother.
Counsel here, as it seems proper to observe, are not those who appeared in the divorce case proper. There, charging cruelty, the wife was plaintiff and prevailed. In the interlocutory decree, entered May 14, 1949, the custody of the child was awarded to the mother, but with leave to the father to have such custody from five o’clock p.m. Friday, to six o’clock p.m. Sunday, each week. During the period of the father’s custody he was privileged to keep the child at the home he shared with his father and mother. In point of fact, however, the parties seemingly acquiescing therein, the father usually had custody of the child from five o’clock p.m. Thursday, to six o’clock p.m. Sunday. The final decree, entered November 15, 1949, was based “upon the terms and conditions contained in the interlocutory decree.” For the period of six months between the entry of the two decrees, and for three additional months, or until February 14, 1950, neither party complained or otherwise challenged the custody arrangement decreed by the court; but on the date last mentioned the father, charging that the mother was an unfit person to have custody of the
Plaintiff in error complains that the showing made in support of his petition was such that the failure of the court to find the mother was unfitted to have custody of the child, was an abuse of judicial discretion, hence erroneous. We have been at pains to examine the record in extenso. Counsel for the father, proceeding within the legitimate limits of argument, have emphasized the evidence which they regard as conclusive, while counsel for the mother, proceeding quite as legitimately, presents the converse. Specifically, counsel for the father stress testimony given by their client relative
The trial court, although not specifically referring thereto, either did not give credence to the testimony of the father, as such, or regarded it as “double talk,” and declined to dignify the statement with judicial consideration. The situation regarded from either angle, as we think, the trial court, in whose discretion primary determination rested, was not only not bound to believe what the father said—the sole factual dependence here— but, proceeding considerately, could and did ignore it. Other points presented, largely included in the one we have discussed, are believed to be without merit.
Let the judgment be affirmed.
Mr. Justice Hays and Mr. Justice Alter concur.