Kehus v. Euteneier

Finley, C. J.

(dissenting)—In Patterson v. Patterson (1957), 51 Wn. (2d) 162, 316 P. (2d) 902, the court reiterated and emphasized a policy of very strong reliance on trial court determinations in child custody matters. We said in Applegate v. Applegate (1959), 53 Wn. (2d) 635, 335 P. (2d) 595, that an award of child custody made by a trial court will be overturned only if there has been a manifest abuse of discretion. Very strong reliance is to be distinguished from absolute adherence, as evidenced by our reversal of the trial court in Thompson v. Thompson (1960), 56 Wn. (2d) 244, 352 P. (2d) 179.

*194The situation involved in the case now before us is, in my best judgment, another of those rare instances where it can be said convincingly that there has been a manifest abuse of judicial discretion because of a failure to recognize a change in conditions affecting the best interests and welfare of a minor child. It is pertinent to note that in the instant case custody originally was given to the mother, and that thereafter, by agreement of the parties, was transferred to the father when the mother became ill and was unable to support the child.

It seems to me that the trial court’s so-called findings of fact, quoted in the majority opinion, are actually not findings of fact, but are more in the nature of value judgments or conclusions expressed to support continuation of an existing custody arrangement. On the other hand, the significant facts, as shown by the record and reflected in the majority opinion, are these:

First, the child is a minor, approximately eleven years of age at the present time.

Second, she is a female approaching puberty.

Third, the living quarters of the father, the custodial parent, are “small and cramped” (one bedroom, a living room with a daveno bed, and a “cubby-hole” kitchen).

Fourth, the father is employed only seasonally and has an average annual income of “around sixteen to eighteen hundred dollars,” plus such unemployment compensation as he may be entitled to claim.

Fifth, he was unemployed at the time of trial, but expected to go to work on a four-to-midnight shift.

Sixth, the father can be with the child only on week ends, because, when employed, he works a four-to-midnight shift. At other times, the minor child, for the most part, has lived with a Mrs. Jones, or a Mrs. Schutte, or perhaps with some other adult female baby sitter.

Seventh, the record shows that the principal of the child’s school testified that the school authorities recognized that the child craved the affection of a woman teacher more than was normal, and that an effort had been made in school to place the child with a teacher who was known to be ex*195ceptionally qualified in meeting this kind of need on the part of young pupils.

Now, in contrast, the mother’s situation presently is as follows:

She has remarried; she is a college-trained woman, and works as a school teacher principal; she and her husband have a combined annual income of around ten thousand dollars; she has custody of a younger child (the sister of the child whose custody is in dispute), who is well cared for; and she is able to provide suitable accommodations for another child in her home.

On the basis of these facts, I think the present custody arrangements should be reversed for the following reasons:

(1) This child is approaching puberty, and thus is entering the period of her life when she will need a mother’s love, attention, and guidance probably more than at any other time.

(2) Present custody arrangements do not provide consistent and substantial adult companionship and supervision. The child is shifted from the care and supervision of one adult female keeper to another, as the father—perhaps unfortunately but nevertheless undeniably—is unable to spend time with her because of his problem of night-time employment. Although he has legal custody; nevertheless, as a practical matter, personal custody of the child by the father actually is minimal.

(3) The cramped living quarters fail to provide the minimum amount of privacy commensurate with a healthful environment for this young female child.

(4) The mother would be able to provide more material comforts, greater intellectual stimulation, because of her past training and experience in handling children; and, of more significance, she would be available to provide consistent female companionship and counsel.

(5) The child is entitled to the companionship of her sister.

One may have sympathy for the father, and the record shows that under difficult circumstances he has devoted *196considerable effort toward the care of his daughter. The limited and unstable financial situation in his home may be due to circumstances beyond his control. But these factors and considerations are insufficient justification for the court to impose on this impressionable child environmental conditions which are not conducive to adequate supervision and guidance and to her best welfare. We must bear in mind that the wishes of the parents are subsidiary in child custody matters. Munroe v. Munroe (1955), 47 Wn. (2d) 391, 287 P. (2d) 482; Sweeny v. Sweeny (1953), 43 Wn. (2d) 542, 262 P. (2d) 207.

On the basis of the facts and circumstances of this case, it is unrealistic to say that the best interests and welfare of the child would be promoted by allowing the father to retain custody. I am strongly convinced that the trial court’s decision amounted to a manifest abuse of discretion. I would, without hesitation, reverse and order that custody of the minor child be granted to the mother. Alternatively, because of the pendency of this matter for two and one-half years, I would remand the case for a finding as to whether there has been a change in circumstances since the trial court findings of fact and conclusions of law were entered on June 18, 1959. The majority is reluctant to do either; therefore, I dissent.

It should be noted, as mentioned by the majority, that the disposition of this appeal does not preclude the appellant from bringing another petition to modify the divorce decree with respect to the custody of the child, if it can be shown that there has been a material change of conditions since the trial court findings two and one-half years ago. However, if any action is taken in this respect, it is certainly to be hoped that its processing in the courts can be expedited by all concerned.

Hunter, J., concurs with Finley, C. J.