Andersen v. Andersen

Neill, J.

This appeal presents for review the trial court’s solution to a child custody issue.

The parties were married in 1957 and three children were born to the union. There is a boy born September, 1958, a girl born September, 1959, and a boy born November, 1962. The parties were divorced in March, 1964, by a default decrée entered in Thurston County upon complaint of Mr. Andersen. By terms of that decree, Mr. Andersen was required to pay all obligations of the community and to pay $75 a month for child support. Custody of the children was granted to Mrs. Andersen.

*780Each party remarried. Plaintiff (father) is still married, but the second marriage of defendant (mother) lasted only 6 months.

Mrs. Andersen is not trained for any particular kind of work and since the divorce has periodically received welfare assistance. Mr. Andersen is presently earning about $540 a month and his present wife is earning about $325 a month.

In 1967, Mrs.’ Andersen, then residing in Pierce County, petitioned for a modification of the divorce decree wherein she requested that child support payments be increased to $225 a month. Plaintiff (respondent) conceded that the $75 monthly child support originally decreed is inadequate, but cross petitioned for custody of the children.

At a hearing on the petitions, plaintiff alleged that a man was living at the defendant’s (appellant’s) home, which allegation is categorically denied by defendant. The trial court took the case under advisement and requested the county prosecutor to make an investigation and report. A second hearing was held after this report was filed. A decree was entered changing custody of the children to Mr. Andersen.

Mrs. Andersen appeals and assigns error to the entry of the order modifying the original divorce decree. She also assigns error to the following findings of fact, contending they are not supported by the evidence:

[T]hat two of the neighbors believe that the Defendant and Herbert Cole have been living together in the house at that address; and that such a belief is justified by outward appearances, and it is the belief of the Court.

Finding of Fact No. 5.

That because of her conduct with Herbert Cole the Defendant is not presently fit to have the custody of the minor children of the parties; and that the Plaintiff is a fit and proper person to have such custody.

Finding of Fact No. 6.

In a proceeding of this type, the children’s welfare is the primary consideration. Sweeny v. Sweeny, 43 Wn.2d 542, 262 P.2d 207 (1953); Joslin v. Joslin, 45 Wn.2d *781357, 274 P.2d 847 (1954). Defendant points out that the trial court made no specific finding that the transfer of custody would be in the children’s best interests, but contends that it acted merely to punish her for her alleged misconduct contrary to the holding in Norman v. Norman, 27 Wn.2d 25, 27, 176 P.2d 349 (1947):

As the [trial] court so aptly stated in its memorandum opinion:
“This question of disposition of custody of the child is not to be approved from the point of view of the supposed rights of the father and mother or with any ideas of punishing or rewarding one or the other on account of conduct, but rather from the point of view of the welfare of the child. ...”

She contends that the evidence not only preponderates against findings of fact Nos. 5 and 6, supra, but shows that defendant is a fit and proper person to have custody of the children, whereas plaintiff and his wife are not.

In Chatwood v. Chatwood, 44 Wn.2d 233, 239, 266 P.2d 782 (1954), we stated that the following guiding principles and considerations could be gleaned from our previous child-custody decisions:

1. Each case must be considered and determined separately, upon its own facts and the situation before the court;
2. The best interests and welfare of the children in custody matters are the paramount and controlling considerations. The interests of parents, including claims of the right to child custody, are subsidiary in relation to consideration of the welfare of their children;
3. Those factors usually inherent in the mother-child relationship must be considered in relation to the age and sex of the children. However, in this connection, socially desirable traits of character, emotional maturity, economic ability or stability of the mother, cannot be disregarded;
4. The findings of the trial courts will be accepted as verities on appeal, unless the record evidence clearly preponderates against such findings;
5. Trial courts must necessarily be allowed broad discretion in custody matters, because so many of the factors *782tó be considered can be more accurately evaluated by the trial judge, who has the distinct advantage of seeing and hearing witnesses, and,is in a better position to determine their credibility, than the members of an appellate court, who have access only to the printed record on appeal, and to the briefs and argument of counsel.

A number of witnesses testified as to the fitness and lack of fitness of each parent to have custody of the children. After considering this conflicting testimony, in light of what it considered to be the children’s best interests,1 the trial court found that defendant was unfit to have custody of the children and that plaintiff was fit. It is apparent from a reading of the court’s oral opinion that he did not rely solely upon the conduct of defendant with Mr. Cole in reaching his conclusion as to her fitness to retain the children, but considered other facts as well. A review of the record shows that there is substantial evidence to support this finding and we will not overturn it. As we said in Cumbie v. Cumbie, 61 Wn.2d 669, 672, 379 P.2d 918 (1963):

We see no reason to discuss in detail the derogatory testimony produced by both parties in support of their respective contentions, since it would serve no useful purpose. Throughout the trial, there were numerous conflicts in the testimony of the witnesses. Appellant contends that this court should draw different inferences from the evidence from those reflected in the trial court’s findings of fact. In effect, appellant would have us retry the case de novo from the record. The findings of fact (or portions thereof) which are assigned as error are supported by substantial evidence and will not be disturbed. [Citation omitted.]
In child custody cases, the trial court, in furtherance of the best interests and welfare of the child, is vested with a wide latitude of discretion and its custody disposition *783will not be disturbed in the absence of a manifest abuse of discretion. Applegate v. Applegate, 53 Wn. (2d) 635, 335 P. (2d) 595 (1959), and cases cited therein.

Our statement in Thoren v. Thoren, 73 Wn.2d 671, 672, 440 P.2d 182 (1968), is apropos here:

We approach appellant’s contentions in this divorce action with an eye upon the tenet that this court will' not substitute its judgment for that of the trial court in questions of child custody and property division unless we are persuaded that the trial court has manifestly 'abused the broad discretion vested in it. And, this tenet prevails whether we tend to incidentally agree or disagree with the trial court’s determinations. Clark v. Clark, 72 Wn.2d 487, 433 P.2d 687 (1967), and cases cited therein.

Judgment affirmed.

Hunter, C. J., Weaver, Hamilton, and McGovern, JJ., and Armstrong, J. Pro Tem., concur.

Although there is no specific finding or conclusion spelling this out, we can determine from the trial court’s oral opinion contained in the statement of facts that he did' directly take this into consideration in his ruling. Further appellant has not sought a vacation of the order. CR 52(b) and 52(d); Malfait v. Malfait, 54 Wn.2d 413, 341 P.2d 154 (1959); Bjorneby v. Bjorneby, 56 Wn.2d 561, 354 P.2d 384 (1960); Lambert v. Lambert, 66 Wn.2d 503, 403 P.2d 664 (1965). Also see, In re Todd v. Superior Court, 68 Wn.2d 587, 414 P.2d 605 (1966).