Brim v. Struthers
| Decision Date | 10 June 1954 |
| Docket Number | No. 32818,32818 |
| Citation | 44 Wn.2d 833,271 P.2d 441 |
| Court | Washington Supreme Court |
| Parties | BRIM, v. STRUTHERS. |
Clarence L. Gere, Seattle, for appellant.
Wright, Booth & Beresford, Seattle, for respondent.
The principal question in this appeal by a mother, arises out of her challenge to the factual conclusions of the trial court, upon which it based its dismissal of her petition to modify the child custody provisions of a divorce decree.
Two children are involved, a boy, aged four, and a girl, aged two, at the time of the modification hearing. Their mother and father were divorced September 16, 1952, in an action brought by the father in the superior court for Walla Walla county. Both parties were found to be proper persons to have custody of the children. The decree provided that, until the children reach school age, each parent should have their custody for alternate six-month periods. It further provided that the mother should have ninety days from September 15, 1952, to establish a home for herself and the children in Seattle, Washington, where she then resided, and that, if she did so, the children should be in her custody for a six-month period commencing December 15, 1952. The father was ordered to pay the mother the sum of two thousand dollars with which to establish that home, and additional sums as support money when the children were with her. The children were taken to their mother's home on the designated date.
In March, 1953, she brought this proceeding to modify the decree so that she could have custody of the children, subject only to short periods of visitation with their father. She alleged that circumstances had changed since the entry of the decree, in that she had remarried and established an adequate home for them in Seattle. The trial court found that conditions had changed as she alleged, but it futher found that the establishment of a home 'was a condition to her enjoying the custody provisions of the said decree and was a fact within the contemplation of the Court at the time of the entry of the original decree.' It also found that both parents were proper persons to have custody. It concluded that the mother failed to sustain the burden of showing materially changed conditions to justify any modification, and dismissed the action.
Each case involving custody of children must be decided upon its own facts, and the trial court has a wide discretion in its decision. Consideration of the children's welfare is controlling in all custody cases. In this case, a statement of the evidence in detail would serve no useful purpose because, as we have said, there is no question of the propriety of either parent as a custodian of these children. The evidence does not establish that their welfare would be served by a change in their custody. While we do not wish to encourage decrees providing for divided custody, for the reasons assigned in Schilling v. Schilling, 1953, 42 Wash.2d 105, 106, 253 P.2d 952, and possibly other reasons, we have concluded that no abuse of discretion is shown here.
The mother also contends that the court erred in rejecting evidence of the 'conditions of the parties' at the time of the divorce. She offered to show facts, particularly regarding her health and finances, beyond those shown in the findings supporting the decree.
The divorce was granted after a trial. No appeal was taken. The decree is final and res judicata upon the issue of child custody determined on conditions then existing. It remains so unless and until a material change in the circumstances of the parties justifies its modification in the interest of the welfare of the children. RCW 26.08.110 [cf. Rem.Supp.1949, § 997-11]. See White v. White, 1945, 24 Wash.2d 52, 57, 163 P.2d 137; Heuchan v. Heuchan, 1951, 38 Wash.2d 207, 214, 228 P.2d 470, 22 A.L.R.2d 1410, and cases cited. This change must take place subsequent to the entry of the last custody order. Schorno v. Schorno, 1946, 26 Wash.2d 11, 18, 172 P.2d 474, citing White v. White, supra. Conditions which...
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Ward v. Ward
...236 S.W.2d 641; Goldson v. Goldson, 192 Or. 611, 236 P.2d 314; Meredith v. Meredith, 203 Or. 45, 276 P.2d 387; Brim v. Struthers, 44 Wash.2d 833, 271 P.2d 441. The court, in issuing the original decree, found that the arrangement, therein set out was for the best interests of the child. No ......
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In re Marriage of Vercoe, 31724-2-III
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Kolb v. Kolb
...I would not allow these to be urged or relied upon as a material change in circumstances to obtain modification. See Brim v. Struthers, 44 Wash.2d 833, 271 P.2d 441 (1954). Counsel and litigants owe a duty to come forward. One bite of the apple is enough. Litigants should not be permitted t......
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Vercoe v. Miller, 31724-2-III
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