In 19 C. J. 350, sec. 810, the rule is announced that:
"To justify a modification of the decree awarding custody of the children there must be shown a change of circumstances, or the discovery of new facts which were unknown to the applicant at the time the decree was entered, and which could not have been then ascertained with reasonable diligence. . . . . It is well settled, however, that courts will not deprive the mother of custody of her child unless it is shown clearly that she is so unfit a person as to endanger the child's welfare."
See, also, Kirkpatrick v. Kirkpatrick, ante, p. 27,10 P.2d 1057; Piatt v. Piatt, 32 Idaho 407, 184 P. 470. InSimpson v. Simpson, 51 Idaho 99, 4 P.2d 345, it was held that the burden of showing such changed circumstances is upon the party seeking the modification, and the first inquiry is whether such a showing of changed circumstances has been made as to set in motion and justify the exercise of the discretionary powers of the court in modifying the decree.
The record discloses the following facts: Appellant, since the entry of the decree of divorce, has provided for the child either from her personal earnings or contributions from friends, the main contribution coming from one Bishop, a brother-in-law of appellant's sister, who has been a friend of appellant's since childhood and whose reputation is unquestioned. One Ranginela, whose reputation is also not questioned, has made some contributions. Appellant, by reason of the fact that she was without means, engaged in various occupations. Her association, so far as the record shows, has been with people of high moral standing and there is nothing in the record that would justify the *Page 338 inference that the different kinds of employment in which she has been engaged were other than respectable. She purchased a business in 1931 in Tacoma, Washington, and has living quarters in the building where she conducts her business, where, she testified, she intended to take the child and have it constantly with her. The child, while in her custody, due to her circumstances and employment, was placed occasionally in the hands of respectable and worthy custodians and received proper care and attention, made exceptional grades in school and was constantly, with the exception of short intervals, visited by appellant and received, so far as appellant was in a position to do so, due to her circumstances, proper parental supervision, care and devotion. There is no question raised as to the moral fitness of appellant, and the child at all times has been properly provided for with necessary food and clothing, proper environment and educational opportunities.
It is clear from the foregoing facts that respondent failed to show such changed circumstances, including the unfitness, morally or otherwise, of appellant to continue to have the custody of her minor child, as would set in motion or justify the exercise of the trial court's discretion in modifying the decree. In view thereof, I am of the opinion that the trial court erred in modifying the decree so as to award the custody of the minor child to respondent.
Even if it be conceded that there was a sufficient showing of changed circumstances to set in motion or justify the exercise of the discretion of the trial court, I cannot bring myself to the view that the trial court properly exercised such discretion in modifying the decree and awarding the custody of the minor child to respondent, in view of a comparison of the fitness of appellant as shown above, with the fitness of respondent as disclosed by the following facts:
Respondent, in 1930, was convicted, fined and imprisoned for violation of the national prohibition laws. For some twelve or fifteen months during 1929 and 1930 one Rose Snyder, a married woman of unsavory reputation, lived *Page 339 in respondent's home. In September, 1930, respondent remarried a divorced woman who had children by her former husband and in the decree of divorce she was denied their custody, from which the inference may be indulged that she was not a fit and proper person to have the custody of her children. In June, 1931, respondent went to the home of appellant in Portland, Oregon, and there told her that unless she would cancel the indebtedness of $300 still due her under the separation agreement and decree, he would forcibly take the child from her. Upon her refusal so to do respondent attacked her, inflicting personal injuries upon her and forcibly took the child and refused to surrender the custody of the child to appellant upon proper demand. Prior to, at the time of the hearing and since, respondent has persisted in his refusal to obey the provisions of the original decree of divorce as to the custody of the child and was in contempt of court at the time of the hearing.
In conclusion, it is clearly established that respondent failed to sustain the burden of showing changed circumstances justifying a modification of the decree. Respondent was in contempt of court at the time of the hearing in that he, by force, deprived appellant of the custody of the child in violation of the provisions of the decree. When the fitness of appellant and respondent are compared, the mother's fitness far outweighs that of respondent. As I view it, the modification of the decree is in conflict with established authorities of this jurisdiction as above set forth and contrary to all equitable principles and finds no support in the facts disclosed by the record. *Page 340