dissenting.
I think that the order of the district judge was right in giving nine-year-old Richard to his father, and should not be reversed by this court. He heard the testimony, found in the 400 pages of the bill of exceptions, as it was given' in his court; he saw these witnesses on the witness stand, especially while they were undergoing cross-examination.
Again, one should not overlook the fact that the trial judge in the custody hearing was not a stranger to the parties, but was the same judge who had granted the divorce. At that trial no answer was filed by the defendant, but a stipulation and agreement, signed by both parties and their attorneys, was filed in court, in which the parties agreed that the plaintiff should have the sole and exclusive care, custody, and control of the two minor children; that the defendant should have the right to visit them; that defendant should pay $15 a month each, or a total of $30 a month, for the support of said children; and setting out that the parties had divided the personal property between them, which personal property has been accepted by the plaintiff in full of her- claim for alimony against the defendant.
In strict accordance with the stipulation of the parties, the trial judge originally awarded the custody of both boys to the mother, who immediately took them to California, where they moved about from place to place. The evidence shows that Richard likes life on the farm, gathering eggs, turning stock into the pasture, and even on one occasion drove the tractor. He has a pony to ride to school and has improved in his school work. With the defendant and Ruth and his grandfather, John Bath, he *604has attended Sunday school and church regularly. The same trial judge very properly under this evidence awarded the future custody of Richard to the father, with whom the judge said Richard told him he desired to stay.
The original decree of divorce was entered December 7, 1943, and stated that Richard was four years old and Dennis a few months old.
While the plaintiff appealed from the order entered February 17, 1948, changing the custody of Richard to his father, and put up a supersedeas bond of $500, yet, as she was planning an immediate return to California with the children, this court upon application and affidavits being filed entered a temporary order for the defendant father to retain the custody of Richard, even though supersedeas bond had been given. See 27 C. J. S., Divorce, § 324, p. 1258. The older boy, Richard, has now been continuously with defendant and his present wife, Ruth, since June 6, 1947.
Many witnesses were called to prove the good character of Herman and Ruth Bath, consisting of men of prominence and affairs, and close neighbors. All these witnesses vouched for the exemplary conduct of Herman Bath, who does not now use profanity, smoke, or drink; that he is a steady, hard worker and good farmer; and for the fine, high character of Ruth Bath. There can be no question but that the good character of Herman and Ruth Bath was proved beyond a doubt, and that they would give constant, daily, undivided attention to the care of Richard, whom they love and who not only loves them but is happier with them on the farm than he has ever been in his life.
In this record we find a letter written by plaintiff and another by the defendant which show certain facts. The defendant wrote plaintiff a letter, being exhibit No. 7, thanking her for pictures and records of school work, and said that her picture looked as though she had been working too hard. He then referred to some woman and *605said that she had doubtless heard stories about “Cappy and I,” but that the affair was not serious and he was not going steady with her. He urged plaintiff to be careful with the boys and not let them develop a temper like he. had. He said that he had gone on several parties that had lasted several days, but he never got too drunk to know what he was doing. He said he had wasted the last two years, he had spent a lot of money, and it was all because he felt lost and terribly lonesome.
This letter, exhibit No. 7, bore the date April 9, 1946, which was only a few months prior to his marriage to Ruth. The defendant said that the date on this letter had been changed. Plaintiff did not produce the envelope showing the postmark, and while defendant admitted he wrote the letter he insisted it was written many months previous to its date. Because of the fact that the court reporter for some reason copied all of these many letters into his bill of exceptions instead of attaching the originals, it is impossible for the court to examine the original and see if the date appears to have been changed.
I will now set out some of the contents of letters written by the plaintiff. In exhibit No. 53 we have ah envelope postmarked at Bakersfield, California, December 27, 1945, and addressed to “Mr. & Mrs. Don Coulter,” R. R. 2, Auburn, Nebraska. The letter therein, being exhibit No. 52, was addressed “Dear Mabel,” and parts of the letter read as follows:
“Larry’s Aunt told me today that Larry is back in the states and will be here the first part of February. I haven’t written him for about three or four months. I’ve been going with another fellow since last February. He’s the one I want but think its hopeless. He’s married and his wife refuses to divorce him so — He’s the grandest fellow and is the one guy that is everything I’ve ever wanted. He’s 37, but looks about 32, blond, a few inches taller than I am, and just swell. Also I forgot to add that he’s got money. He’s been separated for a year and a half. If I ever thought that she’d let him go I’d wait but *606I have my doubts so I’ll probably end up by breaking it up one of these days. I’ve always said that if I ever got married' again it would be to someone older. So much for that. * * *.
“We had to work Mon. but we all got through about 11 o’clock and by the time we hit the office at 2 o’clock we were in the grove and on the beam. Of course the whole gang just had to go to one of the bars and have a few Tom & Jerrys. I had a swell glow when I got home but had to get rid of it as Mom and I took Dicky and Dennis down to Aunt Edith’s for Christmas Eve. I went out Christmas Eve but took it easy as I had a headache from the afternoon and wanted to feel good Christmas Morning.”
The defendant’s exhibit No. 1 is a letter written by plaintiff under date of October 8, 1946, and addressed to “Dear Herman.” It appears that the boys were living over at Morro Bay with Mrs. Higgins, for the plaintiff writes to defendant and says in exhibit No. 1: “I just got home from Morro Bay from seeing the kids. * * * I was quite disturbed over the change I found in Dicky. He is getting entirely out of hand and doesn’t seem to know what mind means, although a lot of the time he is as good as can be. * * * I have been seriously considering marriage for several weeks * * *. The children both like Tommy a lot and he likes them, but his work in the oil field move him around so much.”
An elderly lady, Mrs. Edith L. Higgins, of Morro Bay, California, came to Nebraska to testify as the plaintiff’s only witness, aside from the clerk of the district court, called in her behalf as to the facts in the case, although plaintiff had lived in that part of Nebraska up to the time she moved to California.
When plaintiff, her mother, and the two boys went to California in December 1943, right after the divorce, they lived with Mrs. Higgins until they got a place on Orange Street, also in Bakersfield. Mrs. Higgins testified that her husband had built a house in Morro Bay, with an *607apartment finished upstairs which plaintiff could use. However, this is about 150 miles from Bakersfield, where plaintiff last had employment in a hospital, but testified she did not know whether she still had the position.
One of the questions on the cross-examination of Mrs. Higgins, and the answer thereto, was as follows: “Q Well, I will ask you, Mrs. Higgins, if in September you didn’t write to Mr. and Mrs. Herman Bath in regard to these children, and state: T am so thankful that he— meaning Dicky — can be rooted somewhere and have people care for him. Both he and Dennis have been such a part of my life and planning it tears at my heart strings to be separated from them.’ And further stated that: ‘Dicky has always loved the farm and had a deep feeling for his father and grandparents.’ A I did.”
Mrs. Higgins testified that while the children were near her she took them to Sunday school regularly, as she had a car. She testified that at the end of May 1947 she bought a round-trip ticket for the grandmother, Mrs. Blythe, to bring the children back to Nebraska, but only a one-way ticket for Dicky; that she bought them because she was an experienced traveler; and that Mrs. Blythe gave her the money for them.
During the trial of the case at bar, and when Ruth Bath, was concluding her testimony, plaintiff’s attorney objected to the presence of Dicky Bath, who had just been brought into the courtroom. The attorney for the defendant said that he had had him brought into the courtroom to use as a witness for defendant. Plaintiff’s attorney objected to the use of Dicky, a child of nine years, as a witness for the defendant, and argued that his father and present wife might have prejudiced the child’s mind against his mother during the seven months he had lived with them. It was then agreed by counsel for both parties that the court should take Dicky into a separate room and talk with him, and a recess was taken and the judge took Dicky in another room and talked to him.
After the trial, and before the hearing on the motion *608for new trial, the court made the following statement in the record: “That it was agreeable to both parties, and that the Court talked to the child, and that the Court reported back to respective counsel the gist of said conversation in which said child stated that he liked both parents and was happy with them both, but he expressed his preference to remain with his father.”
In a recent case it was held in effect that, on petition to change custody of children of divorced parents, where evidence indicated that either mother’s home or father’s home would be proper for children, testimony, including that of children, that they preferred to continue to live with father and his presént wife, whom they often referred to as “Mother,” supported decree continuing custody with father. Grandell v. Short, 317 Mass. 605, 59 N. E. 2d 274.
In the above case the girls were only seven and eight years of age. The court also said generally that such findings of the court, based on oral testimony, both parents being present during the trial, are not to be set aside unless plainly wrong.
Many courts have held that evidence of the child’s preference is admissible and such fact should be considered by the trial court, which is exactly what Judge Falloon did in the case at bar.
Child custody orders are necessarily subject to the control of the court in a divorce action, do not become final, and may be modified or changed from time to time as the best interest of the child may appear.
“The welfare of the child is the controlling consideration, and whenever it is shown that it is best for the welfare of the child that it be transferred from the custody to which it was awarded, the court will in its discretion modify the decree; otherwise modification is properly denied.” 27 C. J. S., Divorce, § 317, p. 1189. See, also, Feather v. Feather, 112 Neb. 315, 199 N. W. 533; Carlson v. Carlson, 135 Neb. 569, 283 N. W. 214.
“This court is not bound by the strict rule of law which *609binds the parties to an action; the state is a party here, in that its interest adheres to any action concerning the care arid custody of an infant, when made the subject for judicial inquiry. The rights of parents, without exception in such cases, yields to the welfare of the infant. The matter rests rather upon sound judicial discretion than upon hard and fast rules of law. The judicial review upon appeal of judicial discretion of the nisi prius court is limited to judicial abuse of discretion.” Weber v. Redding, 200 Ind. 448, 163 N. E. 269. See, also, Trevino v. Trevino, (Tex. Civ. App.) 193 S. W. 2d 254.
The Nebraska court has quoted an authority to the effect that “ ‘Every child born in the United States has, from the time it comes into existence, a birthright of citizenship which vests it with rights and privileges, entitling it to governmental protection, “and such government is obligated by its duty of protection, to consult the welfare, comfort, and interests of such child in regulating its custody during the period of its minority.” Mercein v. People, 25 Wend. (N. Y.) 64, 35 Am. Dec. 653.’ ” State ex rel. Bize v. Young, 121 Neb. 619, 237 N. W. 677.
And again, our court has said in effect that the welfare of the child is the primary consideration to which all other questions must yield, and the court should consider, not only the spiritual and temporal, welfare, but also the minor’s further training in education and morals. See In re Guardianship of Herten, 127 Neb. 88, 254 N. W. 698.
There appears to be a belief held by some in Nebraska that if the custody of a child is given to the mother in the original divorce decree it cannot be taken from her unless and until she is shown to be an unfit person to have such custody. Such a statement appears in a per curiam opinion entered in Gross v. Gross, 122 Neb. 25, 239 N. W. 201.
The Gross case is cited in one other opinion, to wit, Downs v. Downs, 134 Neb. 457, 279 N. W. 151, which also appears to support the idea that only if the mother is proved unfit can the custody of her child, once given to *610her, be changed. However, a careful reading of these two opinions shows the additional qualification, “or the best interests of the child require such action,” as a modification of the other statement, which is therefore in accord with the Nebraska statute and the laws of many other states.
It is, therefore, my firm conviction that a district judge can and should change, the custody of a child whenever it is for the best interests of such child, for our law which governs this matter says nothing about proving a mother unfit, but reads as follows: “If the circumstances of the parties shall change, or it shall be to the best interests of the children, the court may afterwards from time to time on its own motion or on the petition of either parent revise or alter, to any extent, the decree so far as it concerns the care, custody and maintenance of the children or any of them.” § 42-312, R. S. 1943.
In this case the defendant has a cross-appeal asking that custody of Dennis also be awarded to him. The evidence as to this younger boy is as convincing as to the older boy. He loves the defendant and Ruth, for the evidence shows that when Dennis was at their farm home and when she was entertaining a club he would not eat until he could eat with her. In the months he lived in the farm home he developed in every way, and should in my opinion be there with his older brother; but it may be admitted that Dennis is of a tender, preschool age and the trial judge left his custody with his mother, which means, of course, his grandmother, Mrs. Blythe, and the cousin, Mrs. Higgins, as the mother is away working every day she can get employment and is out on dates many evenings.
“On appeal in an equity case, this court tries the case de novo; but where the witnesses appear in person before the district court and their testimony is conflicting, the conclusions reached by that court as to the credibility of the testimony are entitled to consideration.” Enterprise Planing Mill Co. v. Methodist Episcopal Church, 100 *611Neb. 29, 158 N. W. 386. See, also, Shafer v. Beatrice State Bank, 99 Neb. 317, 156 N. W. 632; Greusel v. Payne, 107 Neb. 84, 185 N. W. 336; Jones v. Dooley, 107 Neb. 162, 185 N. W. 307; In re Estate of Waller, 116 Neb. 352, 217 N. W. 588; Yardum v. Evans, 120 Neb. 699, 235 N. W. 85; Southern Surety Co. v. Parmely, 121 Neb. 146, 236 N. W. 178; Cary v. Reiter, 122 Neb. 476, 240 N. W. 582; State v. Cheyenne County, 123 Neb. 1, 241 N. W. 747; Graham Ice Cream Co. v. Petros, 127 Neb. 172, 254 N. W. 869; Aeschleman v. Haschenburger Co., 127 Neb. 207, 254 N. W. 899.
“When the evidence on material questions of fact is in irreconcilable conflict, this court will, in determining the weight of the evidence, consider the fact that the trial court observed the witnesses and their manner of testifying, and must have accepted one version of the facts rather than the opposite.” Green v. Green, 148 Neb. 19, 26 N. W. 2d 299. See, also, Maryland Casualty Co. v. Geary, 123 Neb. 851, 244 N. W. 797; Sutherland v. Sutherland, 132 Neb. 558, 272 N. W. 549; Watkins v. Waits, 148 Neb. 543, 28 N. W. 2d 206; Probert v. Grint, 148 Neb. 666, 28 N. W. 2d 548; Meredith v. Meredith, 148 Neb. 845, 29 N. W. 2d 643; Sell v. Sell, 148 Neb. 859, 29 N. W. 2d 877; Sporcic v. Swift & Co., 149 Neb. 246, 30 N. W. 2d 891.
“A reviewing court would accept the findings of a chancellor upon questions of fact, based on statements of witnesses whom he saw and heard testify, unless such findings were clearly and palpably erroneous.” Kent v. Kent, 315 Ill. App. 284, 42 N. E. 2d 958.
“We believe that the present manifestation of interest in this boy on the part of his father should be encouraged ,and not discouraged. We prefer to determine this father’s right to the custody of his son by his present conduct and not by his past conduct. We decline to say the father of this boy has been guilty of lack of interest or of conduct so unbecoming of a father as to forfeit his right to his son’s custody.” Kent v. Kent, supra.
“The modification must be based upon some change in *612circumstances, or on the wishes (which are not controlling) of the children, and always for their good, for that is the sole guide in all changes of custodianship. Broadly stated the controlling considerations are a change of circumstances, the conduct of the custodial party, the morals of the parents, their financial condition, the age of the children and the devotion of either parent to the best interests of the children.” Keezer, Marriage and Divorce (3d ed.), § 725, p. 764.
In a recent case of Madgett v. Madgett, 149 Neb. 41, 29 N. W. 2d 875, a default decree of divorce was entered July 20, 1945, which incorporated a property settlement. Thereafter, on an amended petition to modify the original decree of divorce as to the care, custody, and maintenance of the children, the trial court entered an amended decree April 9, 1947, from which decree the divorced wife appealed. The sons were ten and five years old. The father had a responsible position in an insurance company at a good salary. His mother had agreed to come and live with him and maintain his home. The children’s mother remarried and moved to Denver, and the opinion says that the record reflects that she had. failed to show the intelligent and proper regard that a mother should have for her sons. It was held that the amended decree was equitable and should be affirmed. This change of the custody of the two young boys from their mother to their father, who now has a good home for them, was based on the section of the statute heretofore set out, section 42-312, R. S. 1943, and says the controlling question is what is for the best interests of these two boys. The change in custody entered by the trial court was affirmed.
In the case at bar, the testimony of the defendant was supported by that of his excellent wife and many neighbors and friends while the plaintiff’s evidence was supported by but one witness, her elderly cousin, Mrs. Higgins, who had come from California.
In appeals in actions in equity this court is required *613to try the issues de novo, without reference to the findings of the trial court. However, in a vast number of opinions of our court it has been said in many ways that this court should consider the fact that the trial judge observed the witnesses, and in the case at bar both the plaintiff and the defendant appeared personally before him. He also examined this nine-year-old son, Richard, and decided that it was for his best interest that his custody be given to his father and his present wife, Ruth, and that he be given a permanent home on their farm.
The trial judge found that the circumstances of the defendant had greatly changed since the divorce was granted. Instead of living with his parents, his mother being sickly, defendant now had a modern six-room farm home. He has a fine young wife, to look after the spiritual and temporal welfare of Richard, and she will be able to devote much time to his further training, education, and morals.
In the case at bar, the district judge had a stipulation before him in the trial of the divorce case that the mother should be given the custody of these boys, but such an agreement is not controlling, and in later proceedings for the change of custody the future welfare of the child is the primary consideration, to which all other questions must yield. •
In my opinion the order of the trial court was right and should be affirmed.