I concede that in awarding the custody of a minor child the welfare of the child is the paramount consideration, and a wide discretion is vested in the trial court in such matters.
The only question involved on this appeal is whether defendant made out a prima facie case entitling her to a modification of the decree awarding the custody of the minor child to the husband and father. The only evidence introduced was that offered by defendant and appellant. Plaintiff offered no evidence but when defendant rested, he moved for a dismissal of the petition for insufficiency of the evidence to warrant a modification.
I think the evidence was sufficient to make out a prima facie case. Our statute, R. C. M. 1947, sec. 91-4515, in part provides: “In awarding the custody of a minor, or in appointing a general guardian, the court or officer is to be guided by the following consideration: * * *.
“2. As between parents adversely claiming the custody or guardianship, neither parent is entitled to it as of right; but other things being equal, if the child be of tender years, it should be given to the mother * *
Defendant had shown that since the custody was awarded to the father she has married a man with a good income and has a good home provided for her in Great Falls. Her husband expressed a desire and willingness to accept the child in the home; at the time of the divorce action defendant was working and hence was unable personally to look after the child; she is not now employed and can look after the child as a normal mother would and should.
Without referring to all of the testimony it is my opinion there was ample evidence to make out a prima facie case requiring the motion to dismiss to be denied.
If the allegations of the complaint in the divorce action, and if more of the facts and circumstances which prompted defendant to agree at the time of the divorce action that plaintiff be awarded the custody of the child are important in this proceed*222ing, as indicated in the majority opinion, then that furnishes an additional reason why the cause should be remanded for further proceedings because the court stated at the hearing, “I am not interested in anything before the last decree” which was shown to be March 29, 1951, when the first order was made denying a modification of the decree.
The result of the majority opinion is to permanently deprive the mother of the right to the custody of her minor daughter because in any subsequent application for modification of the decree the court will be justified in holding her to proof of a change of conditions since the order here in question was made. Jewett v. Jewett, 73 Mont. 591, 237 Pac. 702, which in all probability would be extremely difficult if not impossible.
I think since defendant made out a prima facie case for modification of the decree, the cause should be remanded with directions to set aside the order granting and to enter an order denying the motion to dismiss and allowing plaintiff the right to offer evidence, if any he has, in opposition to the prima facie showing made by defendant.