Dunbar v. Dunbar

• Citation: 102 Ariz. 352,429 P.2d 949
• Decision Date: 07 July 1967
• Docket Number: No. 8456,8456
• Parties: Lucille DUNBAR, Appellant, v. H. S. DUNBAR, Appellee.
• Court: Supreme Court of Arizona

Page 949

429 P.2d 949

102 Ariz. 352

Lucille DUNBAR, Appellant, v. H. S. DUNBAR, Appellee.

No. 8456.

Supreme Court of Arizona, In Banc.

July 7, 1967.

Gerald G. Eastman, Phoenix, for appellant.

Barry B. Cline, Prescott, for appellee.

STRUCKMEYER, Justice.

This case originated as an action for divorce brought by appellant, Lucille Dunbar, with a cross complaint by appellee, H. S. Dunbar. Divorce was granted in favor of Lucille Dunbar, and from the trial court's rulings on the custody of the minor child and division of property of the parties, she brings this appeal.

The parties were married at Gallup, New Mexico, on December 21, 1955. In May, 1956, appellee secured a divorce from appellant. The parties were remarried August 9, 1956, and lived together as man and wife until February 16, 1960, when appellant filed suit for divorce against appellee. On March 2, 1960, while the parties were separated and this second divorce was pending, in contemplation of furthering the marital relationship, the parties entered into an instrument entitled 'Agreement and Settlement of Marital and Property Differences,' hereinafter called reconciliation agreement, whereby both parties agreed that all property then owned by either of them, both real and personal, was to be community property. The divorce complaint was thereupon dismissed, and the parties reassumed the marriage relation for two and one-half years until November 23, 1962, when the appellant filed the present suit for divorce, alleging cruelty. Appellant sought a division of the property in accordance with the 1960 reconciliation agreement and custody of the four-year-old minor child of the parties, Debra Mashell Dunbar, and child support for this child. The custody and support of the children issue of the previous marriages of the parties are not involved in this appeal.

Appellee denied the charges of cruelty, counterclaimed for divorce from the appellant on the grounds of cruelty, claimed that the 1960 reconciliation agreement was void for the reason that it was procured through fraud and duress, and asked that he be given custody of the child.

Upon the date set for trial, appellant failed to put in a personal appearance, but was represented by counsel. Counsel for appellant filed a motion for continuance at that time which was denied, and the court proceeded to hear the evidence on both sides. Appellant was granted a divorce on her complaint. The trial court awarded custody of the child to both parents, with physical custody in the appellant, and the appellee was ordered to pay $75 a month for child support.

At the trial, the lower court granted appellant's motion to strike from the counterclaim the charge of fraud, but did find, as a mixed question of fact and law, that appellee had signed the reconciliation agreement under duress and, therefore, the reconciliation agreement was void. Appellee was directed to pay the appellant $5,000, payable at the rate of $100 per month in lieu of any rights in the real and personal property awarded to appellee. After perfecting this appeal and filing the answering brief, appellee's then counsel withdrew and present counsel was substituted as appellee's attorney. No further briefs were filed.

The issues with which this appeal is concerned are limited to two basic questions. First, whether the trial court abused its discretion by awarding the custody of the minor child to both parents with physical custody in the plaintiff; and second, whether the trial court erred in finding that the reconciliation agreement was entered into under duress and was therefore invalid.

I. THE CUSTODY

The trial court entered this order:

'2. That the care, custody and control of the minor child of the parties hereto, to wit, Debra Mashell, should be vested in both the plaintiff and defendant, with the physical custody to be awarded to the plaintiff, until the further order of this Court; * * *.'

Appellee contends that the dual custody arrangement does not constitute a divided custody because it is qualified by the fact that the actual physical custody is awarded to the appellant with reasonable visitation in the appellee, but we think this provision makes the actual custody so uncertain that it can only lead to future difficulties.

The final determination of custody in a divorce action is and must be determined by what the court considers to be in the best interest of the child. The wishes of the parents, of course, may and should be considered; but their happiness and their desires will never be allowed to interfere with the child's true welfare. Bradstreet v. Bradstreet, 34 Ariz. 340, 271 P.2d 717. See also Andro v. Andro, 97 Ariz. 302, 400 P.2d 105, reh. den. 98 Ariz. 1, 401 P.2d 404. While it is true that the trial court stands in the better position to determine what will be in the best interest of the child, nevertheless this Court will not hesitate to modify or reverse where the record discloses an abuse of judicial discretion. Smith v. Smith, 90 Ariz. 190, 367 P.2d 230.

It is the declared policy of this state that the age of a minor child is a significant consideration in the determination of custody. A.R.S. § 14--846, subsec. B, provides as follows:

'B. As between parents adversely claiming the custody or guardianship, neither parent is entitled to it as of right, but, Other things being equal, if the child is of tender years, it shall be given to the mother. If the child is of an age requiring education and preparation for labor or business, then to the father.' (Emphasis supplied.)

The welfare of this child depends upon the attitude of her parents and their treatment of her. In Ward v. Ward, 88 Ariz. 130, 353 P.2d 895, this Court interpreted A.R.S. § 14--846, subsec. B, supra:

'It is clear from the quoted language that the policy of this state is to recognize the rights and duties of Both divorced parents in the upbringing of a minor child, and to take into account the fact that the age of the child may substantially affect the nature of those rights and duties. While still in infancy, the child is entitled to its mother's care and devotion.' 88 Ariz. at 137, 353 P.2d at 900.

And,

'Of course, the statutory preference * * * on these facts is limited by the phrase--'other things being equal'. Whether 'other things' are equal is a question of fact, the most important aspect of which is whether both parents are fit and proper persons to have custody of the child. That is, if neither parent is found to be unfit, and if the welfare of the child does not clearly demand otherwise, 'other things' are equal, and the policy declared by the statute Should be adhered to.' 88 Ariz. at 138, 353 P.2d at 901. (Emphasis supplied.)

There was no finding that Lucille Dunbar is not a fit and proper person to have custody and control of her daughter. To the contrary, the trial court impliedly found that both father and mother were fit and proper persons to have custody of this child when it granted custody to both parties. From this, we conclude that 'other things' are equal and, therefore, the court must abide by the policy of the statute which requires that custody 'shall' be given to the mother, appellant herein.

2. THE RECONCILIATION AGREEMENT

This...