concurring. It is unnecessary to overrule prior decisions of the Kansas Supreme Court to affirm the trial court. For the reasons hereafter assigned the res judicata doctrine has no application to the facts presented by the record herein.
Linda Hill in her testimony flaunts her immoral conduct, which she claims existed at the time the divorce petition was filed, and defends the custody challenge on the theory of res judicata. In fact, Linda’s testimony is a self-indictment of unlawful conduct denounced by the laws of the State of New Mexico where she lives, and the laws of Kansas, until the repeal of K.S.A. 23-118, effective July 1,1979. Consider also 18 U.S.C.A. § 2421, commonly known as the Mann Act, for a statement of the public policy enunciated by the Federal Congress.
The New Mexico statute, N.M. Stat. Ann. § 30-10-2 (1978) provides:
“Unlawful cohabitation consists of persons who are not married to each other cohabiting together as man and wife.
“Whoever commits unlawful cohabitation upon the first conviction shall only be warned by the judge to cease and desist such unlawful cohabitation.
“Whoever persists in committing the crime of unlawful cohabitation after being warned is guilty of a petty misdemeanor.”
During the period of time concerning which Grover Hill complains of Linda’s conduct, K.S.A. 23-118 was in full force and effect. It provided:
“That any persons living together as man and wife within this state without being married shall be deemed guilty of a misdemeanor, and on conviction thereof shall be fined in a sum not less than five hundred nor more than one thousand dollars, or be imprisoned in the county jail not less than thirty days nor more than three months.”
*687It was in the last week of April 1979 that Linda brought Brian to visit his father, Grover, and Grover was to return the boy to Linda in June 1979. Linda told Grover at the time she was going to California. When Grover definitely learned of Linda’s living arrangement with Larry Holden and his brother, in a two-bedroom trailer house in Aztec, New Mexico, Grover consulted an attorney, refused to return Brian to Linda, and thereafter filed his petition for change of custody.
The trial court after hearing the evidence applied the correct rule of law and awarded custody of Brian to Grover. The issue as between parents, each of whom seek custody of their child, following divorce, turns on what the trial court considers is for the best interests of the child. K.S.A. 1979 Supp. .60-1610(6). It was the trial court’s finding, after hearing all the evidence, that it would be in the best interest of Brian that custody be changed from Linda Hill, his mother, to his father, Grover J. Hill.
The issue in a child custody matter where the custody dispute is between one parent and a third party is the fitness of the parent to have custody. Trompeter v. Trompeter, 218 Kan. 535, 539, 545 P.2d 297 (1975); Schreiner v. Schreiner, 217 Kan. 337, 341, 537 P.2d 165 (1975); In re Eden, 216 Kan. 784, 786, 533 P.2d 1222 (1975); Gardner v. Gardner, 192 Kan. 529, 533, 389 P.2d 746 (1964).
The court in its opinion assumes the trial court’s order was based on a “best interests” finding only, not a “change of circumstances” finding. The court concludes by considering the testimony of Linda that there was no change in circumstances of the parties between March, when trial was held, and August, when the motion to change custody was heard. This approach ignores several salient rules of law which should be applied on appellate review.
Where no specific findings are requested or made in a divorce action, and the trial court makes a general finding in favor of one of the parties, granting judgment to that party, such finding carries with it as established all facts necessary to support the judgment, and the appellate court will not weigh the evidence where the general finding is supported by substantial testimony. Gardner v. Gardner, 192 Kan. at 531.
In the instant case no specific findings were requested or made. The trial court simply made a general finding in accordance with *688the statutory mandate to determine what was in the best interest of the child in awarding a judgment of custody to the father. That general finding carried with it as established all facts necessary to support the custody award, and the Supreme Court should not weigh the evidence because the general finding is supported by substantial testimony.
My position herein is two-pronged. First, there is sufficient evidence to support a specific finding by the trial court, which inheres in the judgment, that a change in circumstances occurred between the original judgment in the divorce action awarding custody to Linda, and the filing of the petition for change of custody. Second, assuming arguendo there was no change in circumstances, the exception to the doctrine of res judicata applied by the Court of Appeals must prevail in reviewing the record herein. That is, where it can be shown that the facts existing at the time of and since the original hearing have an adverse and detrimental effect upon the physical, mental or emotional health or development of the child, then the doctrine of res judicata is relaxed and bows to the cardinal and polestar principle that in matters of custody, the welfare of the child is paramount. Hoffman v. Hoffman, 228 Kan. 290, 613 P.2d 1356 (1980).
On the first point, the evidence most favorable to the trial court’s judgment is that Grover, at best, only suspected that his wife was cohabiting with another man at the time of the divorce. The divorce decree was entered in a default hearing, wherein Linda did not appear, and on the ground of incompatibility. Obviously, with a total absence of evidence the trial judge knew nothing of the circumstances under which Linda was living, when the divorce was granted and the custody order was entered. Furthermore, assuming Grover knew more, he had the right to expect Linda to marry her paramour as soon as she was free to do so. The divorce gave rise to a new event affecting the circumstances. But Linda’s remarriage did not develop, and this gave rise to changed circumstances when Linda was free to marry but refused to do so.
The public policy in Kansas favors marriages. Schuchart v. Schuchart, 61 Kan. 597, 60 Pac. 311 (1900). The existence of an unlawful cohabitation statute throughout the history of Kansas, and throughout the period in question in this custody fight, *689reaffirms the existence of the public policy of the state. It is inferentially reaffirmed by the legislative enactments in Article 16, Chapter 60, of the Kansas Statutes. In particular, consider the legislative admonition in K.S.A. 1979 Supp. 60-1608.
The Court of Appeals imposition of an obligation on Grover to conduct discovery and ascertain all the facts, under the penalty of its application of the res judicata theory, where Linda had removed herself to a distant state, is unrealistic. It imposes an undue burden of litigation expense on our citizens which our court is administratively trying to correct and overcome. It also forces on married couples who find it necessary to seek a divorce the obligation to charge the most serious marital violations against one another, when the divorce action is filed and tried. This not only creates more strife and bitterness between the parents, but has an adverse effect on the children of a broken home, who must bear the burden of such publicity and the bitterness created between their parents.
Conduct denounced by the Kansas legislature as warranting criminal proceedings has never been countenanced by our Kansas Supreme Court, except possibly in Fleming v. Fleming, 221 Kan. 290, 559 P.2d 329, 98 A.L.R.3d 445, 453 (1977), where I dissented.
The assertion of my second point to uphold the judgment of the trial court is apparently one the court attempts to avoid by its decision herein. On the facts in this case, the res judicata doctrine applied by the Court of Appeals must bow.
Under our constitutional form of government, which all judges of the state have taken an oath to uphold at both the state and national levels, the members of the legislature representing the people enact laws which declare conduct denounced as criminal. Prosecuting attorneys are charged with the obligation in upholding the constitution to prosecute violations to the full extent of the law. Dereliction on their part to enforce a given enactment, at their will, does not give rise to an acceptable situation in our society upon which courts can rely. For example, if a defendant convicted for having violated K.S.A. 23-118, prior to its repeal, appealed to the Supreme Court seeking to set aside the conviction, on the ground that two and one-half million people in the United States live in “unmarried-couple households,” the members of the court could not set aside the conviction and uphold *690their oath of office. See U.S. Bureau of the Census, Series P-20, No. 350, Population Profile of the United States: 1979, p. 8 (1980).
On the facts in this case it is clear that Linda’s conduct offends prevailing public policy. The logical conclusion of Linda’s argument in seeking to overturn the judgment of the trial court is that the statutory prohibitions of New Mexico and Kansas are void as to those who believe the proscribed acts are not immoral, or, for one reason or another need not be respected. The argument, of course, defeats itself. The laws which our society enacts for the governance of its members are not limited to those who agree with them. They are equally binding on the dissenters. Conduct of the nature flaunted by Linda in defense of this custody battle, when it is open, as here, not only violates the statutorily expressed moral standards of the State of New Mexico, where Linda lived with her child, and of the Kansas statute prior to July 1, 1979, but also encourages others to violate those standards, and debases public morality.
Linda’s disregard for existing standards of conduct instructs her child, by example, that he, too, may ignore them and could well encourage him to engage in similar activity in the future. That factor supports the trial court’s conclusion that it was in the best interest of the child to change custody — that the daily presence of that environment was injurious to the moral well-being and development of the child.
Under Kansas cases the trial court need not find that the child has suffered actual tangible harm. The statute directs: “In all cases involving the custody of any minor children, the court shall consider the best interests of such children to be paramount.” K.S.A. 1979 Supp. 60-1610(h).
The Hoffman case supports the decision of the trial court changing custody herein. The only difference is that the factual situation here presented was not before the court in that case.
A recent decision by the Illinois Supreme Court is on all fours with our case herein. Jarrett v. Jarrett, 78 Ill. 2d 337, 400 N.E.2d 421 (1979), cert. denied_U.S._(1980) (three dissenting members). The court there held:
“Where a parent having custody of her minor children by a prior marriage cohabits with an individual of the opposite sex and has no present intention to marry such individual, there is a disregard by the parent for existing standards of conduct in Illinois, which disregard instructs the children, by example, that they, too, may ignore existing standards of conduct, and that factor supports a trial court *691conclusion that the children’s daily presence in that environment is injurious to the moral well-being and development of the children.” (Syl. ¶ 12.)
It is respectfully submitted the judgment of the trial court should be affirmed by meeting the issue presented head-on, without overruling prior Kansas case law. I agree the judgment of the trial court should be affirmed and the judgment of the Court of Appeals should be reversed.