The parties to this action were undeveloped children at the time of the marriage. The plaintiff was a young girl about 20 years of age. Defendant was of the same age. Plaintiff had gone through the eighth grade, and thereafter had taken a short course in a local business college. Defendant's education was even more limited. The parties were without property. For 11 months after their marriage they resided with the parents of defendant, and apparently got along very nicely during that time. Afterwards the defendant obtained employment and the parties then made their home in Ogden City. There their two children were born. It appears from the testimony that the young man had never learned the art of dancing, whatever that may be. Apparently his wife was devoted to that art, and frequently attended dances. She taught her husband to dance. To use her expression, he thereafter became "dance crazy." They attended dances, and the conduct of the wife while attending one of these dances led to the alleged desertion.
It is not suggested in the testimony that plaintiff's conduct at that dance was other than mildly indiscreet. Her husband testified that he saw her dancing partner "kiss" *Page 362 her while dancing at a pleasure resort known as the White City. The husband very naturally objected to this conduct on the part of his wife. About a week after the above incident the parties were contemplating attending another dance at the same place. The quarrel that followed the conversation respecting this anticipated dancing party resulted in the defendant leaving home. Following the separation of the plaintiff and defendant, in November, 1925, the two minor children were placed with relatives of the defendant. His mother had one and his sister another, the younger. Before the trial of this action the sister of the defendant met with an accident, and she was no longer able to care for the child, and it was taken and left with the parents of the defendant. Thereafter both children resided with defendant's parents. It is shown by the evidence that the father and mother of defendant are substantial farmers residing in the country near Ogden City. The children had their home there, and all the testimony is to the effect that they were well treated and well cared for.
After the children were given to defendant's parents and his sister, the plaintiff did practically nothing for the support of the children; in fact, she saw them seldom. Plaintiff was employed at various places, and at the date of the trial was in the employ of a dry goods establishment at a salary of $55 a month. Her earnings were all used for her own support. Immediately following the separation of the parties, defendant went to California. He remained there for a short period. He then returned to Ogden, where he obtained employment. His testimony is undisputed that he received a salary of approximately $96 a month, and that he gave all of his earnings, except $10 a month to his mother, who was caring for his children. He also made his home with his parents.
The testimony respecting the alleged acts of cruelty possibly ought not to be characterized as "ridiculous." "Puerile" would be a more accurate adjective to use. To illustrate: *Page 363 Much is said in the testimony and in the briefs about an incident where the defendant put his wife in a bathtub and turned on the water. That incident appears to be just this: Defendant was in the bathroom shaving. His wife went in and playfully threatened to throw some water on him. He stated that, if she did, he would put her in the bathtub. She accepted his dare and threw the water on him. She ran out of the room, and he followed her and caught her in the bedroom. Both plaintiff and defendant testified that this was "in fun." Notwithstanding this was considered by both parties at the time as being merely play, it is rehearsed in the complaint and in the testimony as an act of extreme cruelty.
I do not hesitate to say that, in my judgment, under the plaintiff's own testimony, the trial court should have denied her a decree of divorce, even if the defendant had allowed the case to go by default. As hereinbefore stated, the parties were mere children. Their minds were not fully matured at the time of the marriage. As a result of the marriage, two helpless infants were born. This court proposes to take those two children from the grandfather and grandmother, located as they are in a home upon a farm, with healthful and pleasurable surroundings, and give them to the mother, where she can care for them in some apartment and hire a strange woman during the day, when she is working, to look after the needs of the children. That she expects to keep them in an apartment is reflected in her testimony.
The trial court, in my judgment, by denying plaintiff a divorce and leaving the children in the home of the grandparents, was justified by the plaintiff's own testimony. The court was doubtless of the opinion that the children were better off in the home of the grandparents than they would be under the control of the mother, or, for that matter, under the control of the father, of the children, and with that view I heartily agree. *Page 364
The facts presented in this case make it difficult for a court to determine just what ought to be and what ought not to be done. The parties to this suit are entitled to scant consideration by a court of equity. The interest of the children should, and I am sure did, control the trial court in rendering its judgment in this case. It is shown that the grandfather of the children is 60 years of age and the grandmother 54 — not too old to be able to care for children of tender years. The trial court had the parties before it, saw their demeanor, observed their candor, or the want of candor, as well as their manner of testifying. That court was therefore much better able to determine what probable attention these minor children would receive from their mother as compared with the treatment they are receiving while in the home of their grandparents. It may be that the trial court indulged a hope that the parents, as they grow older and realize more fully their responsibility, will again live together and raise their family as the law contemplates they should.
Appellate courts should hesitate, in the face of a record such as we have here, to disturb the trial court's findings or its judgment. The testimony in this case is that the father of the children is working, giving to his mother practically all he makes, and it may fairly be assumed that she uses that money for the benefit and care of the children of her son and the plaintiff. The trial court thought it best to hold the parties to this action to their marital obligations, and leave the children where they themselves had placed them, and I agree with that court in that conclusion. In any event, if this court is of the opinion that the testimony warrants a decree of divorce, the custody of the children, the amount of alimony, and the amount of attorney's fees allowed plaintiff's counsel should be left to the trial court to determine, under the facts now in the record or which may be developed upon a further hearing respecting these particular matters. From the fact that the plaintiff may be entitled to a decree of divorce, it does not follow that the *Page 365 court should award to her the custody of both children or of either of them.
I therefore dissent.