I concur in the majority opinion, but I am of the opinion that it would be more clear if further amplified, particularly with reference to the rule of fitness of the mother. I therefore submit the following to express the views which have furnished the basis of my concurrence. *Page 333
No findings of fact were made by the judge, but in the preamble of his order it is recited that it is for the best interests of the child that the order of custody be modified. An application to modify a decree is not a new action but is a proceeding ancillary to the original action (Smith v. Frates,116 Wash. 108, 198 P. 732), and it would not seem that formal findings of fact are absolutely necessary in disposing of such a matter (Dyer v. Dyer, 65 Wash. 535, 118 P. 634), although when the proceeding is contested it is the better practice for a court to draw findings and conclusions as in the usual course. The recital in the preamble may be considered as a finding of ultimate fact, which carries within itself a finding of all probative facts which establish this conclusion of fact. (Cleveland v. Mochel, 48 Idaho 37, 279 P. 410.) In any event, in absence of any contrary showing in the record, it will be deemed that findings are waived (Bunnell Eno Investment Co.v. Curtis, 5 Idaho 652, 51 P. 767; McCornick v. Friedman,7 Idaho 686, 65 P. 440; Kirkpatrick v. Kirkpatrick, ante, p. 27,10 P.2d 1057), and in considering this case we are bound to uphold the order if there is any reasonable theory of the case upon which judgment can be sustained and there is sufficient evidence in support thereof. (Tom Reed Gold MinesCo. v. United Eastern Min. Co., 24 Ariz. 269, 209 P. 283;Phoenix Safety Investment Co. v. James, 28 Ariz. 514,237 P. 958; Babbitt Cowden Livestock Co. v. Hooker, 28 Ariz. 263,236 P. 722.) The presumption is that, where no findings are made and none are requested, the court found in favor of the prevailing party (Park Saddle Horse Co. v. Cook, 89 Mont. 414,300 P. 242), and that it found every fact necessary to judgment. (United Bank Trust Co. v. Washburn Condon,37 Ariz. 223, 292 P. 1025.)
An examination of the record discloses that there is evidence which, if believed, would have sustained findings to the effect that the father was fit, that the mother was unfit, that conditions have changed, and that the best interests of the child required the change of custody. Inasmuch as *Page 334 the determination of these matters is in the first instance confided to the trial court (Olson v. Olson, 47 Idaho 374,276 P. 34), the exercise of that discretion in the present case could not be disturbed by us without doing violence to the rule which I have indicated. As conversely stated in the majority opinion, the evidence was not such as to require the court to have found contrarily to the findings necessarily presumed under the rule, and thus make a reversal incumbent upon us.
As to the rule relative to the fitness of the mother, it has appeared to me that a more extended discussion is necessary than is contained in the majority opinion.
The excerpt from Corpus Juris quoted in the Kirkpatrick case, and upon which the decision is based, is subject to certain qualifications which appear in the cases cited by the author. The original excerpt (19 C. J. 351, last sentence in paragraph 810) is based upon three cases cited in footnote 52 — Bryan v.Lyon, 104 Ind. 227, 54 Am. Rep. 309, 3 N.E. 880, Reitman v.Reitman, 168 Ky. 830, 183 S.W. 215, and Freeland v. Freeland,92 Wash. 482, 159 P. 698. In Bryan v. Lyon, supra, the appellate court refused to modify an award to the mother at the instance of the father, solely upon the ground that it could not interfere with the exercise of the discretion of the trial court. In Reitman v. Reitman, supra, the court refused to modify a decree awarding custody of a twelve year old girl to the mother, upon the ground that the charges of immorality had not been proven. In this case the court recognized the rule that "the first and chief consideration of the court is to consult the interest of the child." In Freeland v. Freeland,supra, the court refused to disturb the discretion of the lower court in refusing to take away the custody of a minor child, the record failing to show immorality on her part. In its opinion the court said "a child needs a mother's care even more than a father's," and "an appellate court should not disturb the order of the trial court unless it is made reasonably plain by the evidence that the welfare of the child requires it." *Page 335
The rule as usually framed in the decisions is that a mother will not be deprived of the custody of a child of tender years unless it clearly appears that the welfare of the child demands it. The rule itself is based upon the consideration that a mother is naturally better able and more inclined to give such a child that loving care and maternal attention which its tender age requires, and therefore the operation of the rule will usually be found to subserve the interests of the child. Three factors must enter into a determination of such a matter, i. e., the age of the child, its sex and its welfare. This is the tenor of all the decisions cited in the Kirkpatrick case.
In Feather v. Feather, 112 Neb. 315, 199 N.W. 533, where there was involved the custody of a two year old daughter, the court gave a clear statement of the applicable law:
"The evidence further shows that the mother gave to the child genuine, loving affection and excellent maternal care. . . . .
"We think it is generally conceded that the best interests and welfare of a child of tender years will be best subserved by placing it in the custody of its natural mother, if she is a fit and proper person. It is seldom, if ever, that any other person can be found who will bestow upon a child inarms such tender and loving care and who will have its welfare so much at heart, as its mother. The record does not disclose anything that would justify denying to this mother the care and custody of her infant daughter. The welfare and best interests of the child demand that its custody be committed to the mother." (Italics ours.)
The reason for an application of the rule is greatly lessened in this case, because appellant has not lived with the child, and has not given him that maternal care which constitutes its fundamental basis. Rather has she entrusted him to strangers, and absented herself from him for long periods of time. I do not doubt that she yet entertains deep affection for the child, but this of itself is not enough *Page 336 upon which to invoke a categorical application of the principle. (Van Syckle v. Van Syckle, 168 A.D. 924,152 N.Y. Supp. 1047; Winn v. Winn, 243 Mich. 587, 220 N.W. 659.)
No rule of thumb can be laid down as to what constitutes a child of tender years. As a child becomes older the reason for the rule becomes less strong. As to infants in arms its operation would rarely ever be denied, but we cannot say as a matter of law that it must be invoked as to a boy now over nine years of age. (Russell v. Russell, 20 Cal. App. 457,129 P. 467.)
In the journey of a child from infancy to majority conditions may change which render a change of custody originally granted to the mother desirable from the standpoint of the child's welfare. It is for the lower court to draw the line and make the decision in the first instance. Ordinarily a court is never justified in separating an infant child from its mother, except upon clear and convincing proof that its welfare will be endangered by not so doing. But upon such clear and convincing proof, the court has discretion to make such disposition of the child as it sees fit. This rule has already been approved inOlson v. Olson, supra, where the court said, "Awarding the custody of a child of tender years to its father, rather than its mother, on evidence that the father is better fitted to care for and educate it, does not constitute an abuse of discretion." The rule of fitness is not alone concerned with moral fitness, but with all other elements of character and circumstance which can properly enter into a consideration of what is best for the child. We are not required to brand a mother as immoral, before we may enter such order to conserve the future welfare of the child as is clearly required by the proof. As stated in Piatt v. Piatt, 32 Idaho 407, 184 P. 470, before parents can be deprived of custody it must be shown that they are unfit, "or that they are unable to properly maintain them and provide for their proper training and education." While, as stated in the latter case, poverty alone is not an adequate reason to *Page 337 deprive a parent of custody, the circumstances of this case go far beyond that, and the rule announced in Olson v. Olson,supra, must prevail. We cannot say that the court abused its discretion in entering the order complained of or that it erred as a matter of law.