dissenting:
I respectfully dissent for the reason that
the appellant was denied a fair hearing on his motion to change custody. It is obvious from a reading of the memorandum decision of the trial court that the able trial judge took the literal language from the opinion in St. Clair v. St. Clair, 211 Kan. 468, 507 P. 2d 206, and erroneously placed upon the father the burden to prove that the mother of the children was unfit to have custody before die court would consider changing custody to the father. After referring to St. Clair the trial court made the following statement:
“. . . With this rule in mind, the Court is of the opinion that there must be shown some material change in circumstances since September 25th, 1972, which demonstrates complete unfitness of the mother to have the custody of her children. . . .”
As pointed out in the majority opinion the issue which the court should have determined from the evidence was what best serves die interests and welfare of the children. The evidence presented in the hearing on the motion to change custody should have been weighed and considered with that test in mind. It seems clear to me in this case diat the trial court did not apply the proper test in determining the issue of child custody and therefore die case should be reversed for a rehearing.
Fatzer, C. J., joins in the foregoing dissent.