Ettinger v. Ettinger, 7238
Decision Date | 01 July 1963 |
Docket Number | No. 7238,7238 |
Parties | Sally Anne Hildebrand ETTINGER, Plaintiff-Appellant, v. Robert V. ETTINGER, Defendant-Appellee. |
Court | New Mexico Supreme Court |
R. F. Deacon Arledge, Albuquerque, for appellant.
Rodey, Dickason, Sloan, Akin & Robb, Joseph J. Mullins, R. Deane Moyer, Albuquerque, for appellee.
The question before us on this appeal is whether the trial court abused its discretion in granting a change of custody of a 2 1/2-year-old girl from the mother (who is appeallant here) to the father.
The parties were divorced in June 1960, and appellant was awarded the custody of the child, who at that time was less than a year old. In February 1962, the father (appellee here) moved to amend the final decree because of change in conditions, seeking to have the custody awarded to him. After a hearing, the court found that appellant was an unfit mother and that the welfare of the daughter would be 'best served by removing her from the environment which she would encounter if she were to remain' with appellant, and ordered the custody awarded to appellee.
The principal thrust of appellant's argument, in essence, is that it was a clear abuse of discretion on the part of the trial court in granting the custody of the little girl to the father, absent a finding of gross immorality on the part of the mother.
Although there seem to be a few cases favoring custody in the mother which contain language such as contended for by appellant (see Oliver v. Oliver, 1958, 217 Md. 222, 140 A.2d 908; Cassell v. Cassell, 1947, 211 Ark. 489, 200 S.W.2d 965) and some states, such as California and Michigan (Cal. Civil Code, Sec. 138; Mich.Comp. Laws 1948, Sec. 722.541), whose statutes announce the preference, all other things being equal, for custody in the mother, the rule observed by most courts is that while great weight should be given to motherhood as a factor in determining what is for the best interests of the child, the child's welfare is the paramount concern. E. g., C_____ v. B_____, 358 S.W.2d 454 (Mo.App., 1962); McLemore v. McLemore, 346 S.W.2d 722 (Ky., 1961); Meinhardt v. Meinhardt, 1961, 261 Minn. 272, 111 N.W.2d 782. As a matter of fact, appellant strongly relies upon and quotes at some length from 2 Nelson on Divorce, Sec. 15.09, which commences with the statement:
Immediately following this language is the qualification:
'If she is a fit and proper person to have the custody of the children, other things being equal, the mother should be given their custody, * * *.'
Appellant, in effect, ignores this last quoted language in her contention, and, additionally, completely overlooks the latter part of the section in Nelson, supra, particularly that appearing at page 232, which states:
Our statute relating to custody of children is Sec. 32-1-4, N.M.S.A.1953, which provides as follows:
Under this language, our trial courts are clothed with a wide discretion in determining to which parent the custody of a child shall be awarded. The controlling influence should be, of course, the welfare and best interests of the child. See Bassett v. Bassett, 1952, 56 N.M. 739, 250 P.2d 487; Tuttle v. Tuttle, 1959, 66 N.M. 134, 343 P.2d 838; and Urzua v. Urzua, 1960, 67 N.M. 304, 355 P.2d 123. The same considerations are the basis for modifying a custodial decree, and the court acts as 'parens patriae' in revising or changing an order of custody when it appears to be in furtherance of the child's welfare and best interest. Bassett v. Bassett, supra. We concede that, as a general rule, the courts are reluctant to deprive the mother of the custody of a very young child. See Clark v. Clark, 1944, 298 Ky. 18, 181 S.W.2d 397; Richardson v. Richardson, 1951, 72 Idaho 19, 236 P.2d 718; and Hayes v. Hayes, 1956, 134 Colo. 315, 303 P.2d 238. Although no New Mexico case directly in point has been called to our attention, in Albright v. Albright, 1941, 45 N.M. 302, 115 P.2d 59, the court, in its opinion, did quote from the opinion of the trial court in that case, a part of which stated:
* * *'
In the instant case, the trial court found that appellant was 'an unfit mother and her continued custody would be harmful to Diana.' Such a finding, by the trial judge who saw the parties, observed their demeanor and heard the...
To continue reading
Request your trial-
Rhinehart v. Nowlin
......at 751, 250 P.2d at 494; see also Garcia v. Garcia, 81 N.M. 277, 466 P.2d 554 (1970); Ettinger v. Ettinger, 72 N.M. 300, 383 P.2d 261 (1963). . To carry out this mandate, the ......
-
Shorty v. Scott
...See e.g., Garner v. Stone, 85 N.M. 716, 516 P.2d 687 (1973); Kotrola v. Kotrola, 79 N.M. 258, 442 P.2d 570 (1968); Ettinger v. Ettinger, 72 N.M. 300, 383 P.2d 261 (1963).3 See § 22--7--6, N.M.S.A.1953 (Supp.1973); § 32--1--4, N.M.S.A.1953; e.g., Garner v. Stone, supra, n. 2; Kotrola v. Kotr......
-
Fitzsimmons v. Fitzsimmons, 8199
...to see if there is evidence that the wife's relationship with Mr. Felts had any negative impact on the children. In Ettinger v. Ettinger, 72 N.M. 300, 383 P.2d 261 (1963), the court, while recognizing that all the relevant circumstances should be considered by the trial court in determining......
-
Garcia v. Garcia
...custody. We do not perceive that anything more was required. Kotrola v. Kotrola, 79 N.M. 258, 442 P.2d 570 (1968); Ettinger v. Ettinger, 72 N.M. 300, 383 P.2d 261 (1963). Further, we do not agree that the fact the parent with custody is a non-resident or about to become one, for whatever re......