dissenting:
I respectfully dissent, well aware of the need to remove the burdensome social stigma which has so undeservedly attached itself to epilepsy and epileptics, a stigma founded solely on fear and ignorance. It is my sincere belief, however, that this case is not the appropriate vehicle to rectify those historical inequities.
One point cannot be overstressed: no one has taken Lynnae Moye’s children from her because she is an epileptic. Nothing could be farther from the truth. When a district judge awards custody to one of the parents in a divorce case, it is not necessarily because the other parent is not fit. In the ordinary custody case, both parents are loving, capable and determined to raise their children in a proper manner. That does not help the judge who, with the best interests of the child at heart, must pick and probe and scrutinize often petty testimony in an effort to find some articulable difference which will support a painful and difficult choice. When the judge makes that choice, he or she is not taking the children away from the non-custodial parent, nor is that parent found to be unfit. The judge is merely awarding custody to one parent according to the best interests of the child as he views it. This difficult choice is necessitated by the parents’ divorce, not by their shortcomings as parents.
Epileptics can and do make excellent parents. As the majority notes, however, a parent’s physical health, and therefore epilepsy, is certainly a factor which the trial court can consider in a custody case. This the lower court did. It committed no error in this respect.
Our task on appeal is to determine whether the district court’s determination, dictated by the best interests of the children, is supported by the evidence and within the proper bounds of discretion. The lower court in this case properly considered other factors besides the wife’s epilepsy. The testimony of several relatives and acquaintances strongly indicated that the father was the more attentive parent and that he extended significantly greater efforts in feeding and caring for the children. This is reflected in the trial court’s findings.
“VIII
“That defendant is able-bodied and has no apparent moral, physical or mental disabilities, and has demonstrated his ability to look after said children, demonstrating almost a too-zealous attitude about having dry diapers, but the Court considers such zeal is far superior to what the situation would be if he were indifferent to wet diapers.
“IX
“That defendant has since the birth of said children personally looked after, cared for and fed said children most of the time when he has been home, and when' not home has seen to it that some other responsible person stays with plaintiff most of the time to insure said children are adequately cared for.”
The majority dismisses Finding VIII as “irrelevant comments,” but in the context of this controversy, Finding VIII manifests the trial court’s belief that the father was the more attentive parent. Wet diapers may seem trivial to some members of this Court, but it was certainly one of the many factors which the trial court was entitled to consider. Apparently, one of the Moye children had persistent diaper rash which was exacerbated by wet diapers. The parties apparently felt it was an important problem because they both devoted considerable attention to the diaper issue during the trial. However insignificant it may seem to this Court on appeal, the father’s zealous attitude toward dry diapers reflects what the record shows in many other respects was his great concern for the wellbeing of his infant daughter.
The court’s final finding reads as follows:
*174“X
“That defendant has sufficient income to support and educate said children adequately, and has the ability to provide adequate baby-sitting facilities for the children during the hours he is working.”
The phrase “adequate baby-sitting facilities” is perhaps an understatement, since the father had arranged to have his sister-in-law, a licensed practical nurse, take care of the children while he was at work.
There is, on the other hand, not a single finding which in any way indicates it would be in the children’s better interest to have custody vested in the appellant. The lack of findings in that regard is supported by a corresponding lack of evidence in the record.
I fear, against hope, that today’s opinion will make it very difficult for a parent whose spouse is an epileptic to obtain custody of his or her children, their best interests notwithstanding. While I can understand the majority’s desire to rectify an unfounded historical stigmatization, I see no need to reverse a district court’s custody order well supported by the record, quite apart from the epilepsy issue. I cannot help but wonder whether today’s result would be different had this case not been inaccurately cast as a single-issued cause celebre. I would affirm.
It is appropriate to add a final note about an appealability issue ignored by the majority. On January 6, 1979, the plaintiff Lynnae Moye filed her notice of appeal from the district court’s custody order. A final decree of divorce had not yet been entered. Thereafter, she requested this Court to enter an order staying execution of the custody order. On March 2, 1979, this Court remanded the case to the district court to consider the motion for stay pending appeal. In that order, this Court observed that “the order appealed from herein may be a non-appealable interlocutory order since there is no Rule 54(b) I.R.C.P. certification, nor any certification to Rule 12, I.A.R., see Pichon v.[L. J. Broekemeier, Inc., 99 Idaho 598, 586 P.2d 1042 (1978)].”
On remand, a different district judge entered the final decree of divorce. Rather than appeal from that final judgment, appellant merely moved to augment the appellate record with the final judgment and other appropriate documents.
At this stage of the controversy, therefore, we have only a premature notice of appeal taken from an unappealable order. Ordinarily, a premature appeal taken before any final order is entered must be dismissed. Kraft v. State, 99 Idaho 214, 579 P.2d 1197 (1978). Cf. I.A.R. 17(e) (although this rule provides that an appeal from a final judgment or order includes all orders, judgments and decrees subsequently entered, there is no similar provision for premature appeals taken from non-appealable orders). Accordingly, I would advocate dismissal of this appeal were it not for the fact that this Court, in its order of March 2, 1979, merely remanded rather than dismissed the appeal, thus indicating to the parties that the appeal was still properly pending before the Court. If the Court had dismissed the appeal from the custody order, as it should have, then the appellant would have been free to file a new notice of appeal after the entry of the final divorce decree, thereby appealing from the custody order under I.A.R. 17(e). To the extent that this Court’s March 2 order may have misled the parties, I concede, with some hesitation, that this appeal should be entertained.