Albright v. Albright., 4608.

• Decision Date: 19 June 1941
• Docket Number: No. 4608.,4608.
• Citation: 45 N.M. 302,115 P.2d 59
• Parties: ALBRIGHTv.ALBRIGHT.
• Court: New Mexico Supreme Court

45 N.M. 302

115 P.2d 59

ALBRIGHT

v.ALBRIGHT.

No. 4608.

Supreme Court of New Mexico.

June 19, 1941.

Appeal from District Court, Bernalillo County; Bryan G. Johnson, Judge.

Suit by Georgia May Albright against Earl Albright to determine custody of a child. The plaintiff was awarded custody for nine months of the year and the defendant was awarded custody for the remaining three months, and the defendant appeals.

Affirmed.

The controlling consideration when custody of a child is concerned is the best interest of the child.

Quincy D. Adams, of Albuquerque, for appellant.

Owen B. Marron, of Albuquerque, for appellee.

MABRY, Justice.

This case involves the custody of a three-year old child of the parties hereto. While other proceedings were consolidated with the action from which this appeal is taken, it is sufficient to say that this appeal grows out of a suit to determine the custody of said child. The mother, appellee, was awarded the custody of the child for nine months of the year and custody for the remaining three months going to the father, appellant.

The Arizona court had previously, in a default action, granted the father complete custody of the child. After the first order of the Arizona court, granting custody to each of the parents for six months of the year, appellee came to New Mexico with the child and instituted divorce proceedings. Appellant, in the meantime, had secured, upon default, a modification of this Arizona decree and had, thereby, obtained complete custody. The New Mexico trial court found both appellant and appellee fit and proper persons to have the custody of the child; and it appears that up to the time of the re-marriage of appellee the parents of appellant and appellee themselves had actual custody of the child in their respective homes, since the parties were no longer living together and themselves had no home. There had yet been no divorce and therefore no re-marriage. Appellant is still unmarried. The decree of the trial court in the case out of which this appeal grows is justified by appellee, as it was by the trial court in its findings and conclusions, by what is claimed to be substantially changed circumstances. Appellant challenges the decree awarding such custody to the mother in the face of the contrary decree of the Arizona court, upon two principal grounds. He says that the trial court erred in decreeing such custody because there had been no such substantial change in conditions of the parties as would effect the welfare of the child which would justify that court in so acting; and further, that the trial court abused its discretion in awarding the custody of the child to the mother under the circumstances of her re-marriage and the character of the present husband.

[1] Full faith and credit will be given to judgments and decrees of a sister state in habeas corpus proceedings. Evens v. Keller, 35 N.M. 659, 664, 6 P.2d 200. Appellee does not question the applicability of this general rule.

[2] It is likewise true that in matters of this character, courts of one state, upon a showing of changed circumstances indicating the welfare of the child will best be served by a change of custody from one parent to another, will not hesitate to make such change. Ex parte Mylius (Mylius v. Cargill), 19 N.M. 278, 142 P. 918, L.R.A. 1915B, 154, Ann.Cas.1916B, 941; Evens v. Keller, 35 N.M. 659, 6 P.2d 200; Wilson v. Elliott, 96 Tex. 472, 73 S.W. 946, 75 S.W. 368, 97 Am.St.Rep. 928. This does not mean that full faith and credit has not been given to the earlier judgment and decree of the sister state.

[3] There is no dispute as to the fact that the court here had jurisdiction of the parties, including the minor child, at the time the decree herein appealed from was entered. This suit was begun and the issues determined very shortly after the entry of the decree in Arizona giving full custody to the father. Appellant vigorously challenges the grounds upon which the trial court determined that the mother should have custody. He calls attention to the language of the court appearing in the finding to the effect that the place “for a child of tender years, such as this one, is with its mother,” and says this philosophy was employed without consideration of whether there were changed circumstances. Appellee does not quarrel with this statement by the court; nor do we. Many courts have made like pronouncements, and all social and moral considerations under most circumstances, echo approval. The controlling consideration when custody of a child is concerned, is, of course, the best interest of the child. In re Hogue, 41 N.M. 438, 70 P.2d 764; Ex parte Mylius, supra.

There can be no question that the trial court understood that, under the application of the full faith and credit rule, only such changed circumstances which, in the mind of the court and with the best interest of the child as the one consideration, clearly persuaded in favor of a change in custody, would justify its decree so directing. We quote from the language of the court in its opinion and findings: “The sole question before this Court is whether or not circumstances have so changed since the 6th of May, 1940, as to justify this Court in assuming jurisdiction as to the custody of the child. On the 6th of May, 1940, when this order was entered in Cause No. 14711, the father and mother of this child were still husband and wife, although living separate and apart; since that date these parties have become divorced by decree of the Arizona court in Cause No. 14908, and the mother of the child has remarried. If divorce and remarriage would not constitute a change in conditions, the Court has difficulty in knowing what would. The welfare of the child is a matter of course of primary interest. A child of tender years, such as this one, its normal place is with its mother. The fact that these parties have been divorced since the Arizona adjudication of...