Galbraith v. Galbraith

• Decision Date: 16 November 1960
• Docket Number: No. 6703,6703
• Citation: 356 P.2d 1023,88 Ariz. 358
• Parties: H. S. GALBRAITH, Appellant, v. Clare GALBRAITH, Appellee.
• Court: Arizona Supreme Court

Page 1023

356 P.2d 1023

88 Ariz. 358

H. S. GALBRAITH, Appellant, v. Clare GALBRAITH, Appellee.

No. 6703.

Supreme Court of Arizona.

Nov. 16, 1960.

Lewis, Roca, Scoville, Beauchamp & Linton, and John P. Frank and A. Gordon Olsen, Phoenix, for appellant.

Marvin Johnson, Phoenix, for appellee.

PHELPS, Justice.

This is an appeal from a judgment of the superior court of Maricopa county amending a decree of divorce. The original divorce action was instituted by plaintiff-appellee Clare Galbraith against defendant-appellant Henry S. Galbraith. The parties will hereinafter be referred to as they appeared in that action, i. e., as plaintiff and defendant.

The facts in this case are not materially in conflict and may be briefly stated as follows: The parties were married on November 8, 1942, in Dallas, Texas, and thereafter a decree of divorce was granted the plaintiff on June 23, 1953, by the superior court of Maricopa county. The divorce was granted to the plaintiff primarily because of her mental illness and because the marriage had reached a stage at which it was desirable to terminate it for her own welfare. In the divorce action the plaintiff in consequence of such illness desired that the four minor children of the parties (Henry Thomas Galbraith born May 10, 1944; Richard Raymond Galbraith born June 4, 1946; Kathleen Kearney Galbraith born October 25, 1948; and Carol Jean Galbraith born June 9, 1950) be placed in the custody of the defendant. The trial court awarded the care, custody and control of the minor children to the defendant with reasonable visitorial rights in the plaintiff until further order of the court.

On May 27, 1957, the trial court pursuant to a stipulation between the parties modified the divorce decree as to the visitorial rights of the plaintiff without altering the defendant's custody of the minor children.

In February of 1958 the plaintiff petitioned the trial court to exercise its continuing jurisdiction over the divorce decree and to amend the provision set out above by awarding the care, custody and control of the minor children to the plaintiff. The defendant's response to this petition alleged: That there had been no substantial change of circumstances to justify an amendment of the decree; that the plaintiff had not fully recovered from her mental illness, and that the best interests of the minor children would not be served by a change of custody. During the trial the plaintiff abandoned her petition as to the two boys. On April 23, 1958, the trial court awarded to the plaintiff the care, custody and control of the two minor girls on the grounds that the plaintiff had recovered from her mental illness and that it would be to the best interests of the minor girls.

At the time of the divorce proceedings the plaintiff was suffering from a mental illness classified as schizophrenic dissociative perplexed emotionally unstable phase. Stating the illness in simpler terms, she was suffering from a considerable unconscious conflict mostly revolving about the mixture of positive and negative feelings toward her husband and her marriage to him, and conflicts on philosophical problems. She dealt with phantasies and would worry about them. In September of 1950 she went under the care of Dr. Richard E. H. Duisberg, a psychiatrist. Under his care she was institutionalized and given many electric shock treatments to control the excessive excitement of her personality. Her last such treatment occurred in 1954.

Since the divorce the plaintiff, still under the care of her psychiatrist, obtained a Bachelor of Science Degree from Arizona State University at Tempe, and has been teaching third grade in a Scottsdale elementary school since about 1957. At the time of the trial Dr. Duisberg testified that he believed the plaintiff was well enough to have the children even though 'she is still psychotic in some areas.'

The plaintiff has remained single and lives in a one-bedroom apartment. She stated that if she obtained the children she would rent either a three-bedroom house or a two-bedroom apartment.

On July 19, 1953, the defendant married his present wife, Thelma Galbraith. Thelma had two children by a prior marriage and defendant and Thelma have had one child since their marriage. They live in a house in Phoenix with enough rooms that each child can have his or her own bedroom. The yard is well equipped for children.

The defendant is gainfully employed in the lumber business among other things. Presently he is supervisor of the Western Division of the Foxworth-Galbraith corporations.

The question presented on the merits of the case is: Does the evidence show a change of circumstances surrounding the children involved affecting their welfare between June 23, 1953, when the custody was given to the defendant, and April 23, 1958, the date of the order from which this appeal was taken?

A.R.S. § 25-321:

'The court may from time to time after entry of final judgment, on petition of either party, amend, revise and alter the portions of the decree which relate to payment of money for the support and maintenance of the wife or the expenses of the proceedings, as may be just, and may amend, change or alter any provision of the judgment respecting the care, custody or maintenance of the children of the parties as circumstances of the parents and welfare of the children require.'

Under this statute the court retains continuing jurisdiction to modify or amend the custody provision of minor children in a divorce judgment. However, it has been held by this court that a condition precedent to the modification of the custody provisions is a showing of changed circumstances affecting the welfare of the child. Burk v. Burk, 68 Ariz. 305, 205 P.2d 583; Cone v. Righetti, 73 Ariz. 271, 240 P.2d 541; Davis v. Davis, 78 Ariz. 174, 277 P.2d 261; Schulze v. Schulze, 79 Ariz. 86, 284 P.2d 457; Ward v. Ward, 88 Ariz. 130, 353 P.2d 895. It is manifest that such power to modify such a decree should only be exercised for the most cogent reasons. Gotthelf v. Gotthelf, 38 Ariz. 369, 300 P. 186; Davis v. Davis, supra. Even if the requisite proof of changed circumstances is made, the modification prayed for will be granted only if the welfare of the child will be advanced thereby. Ward v. Ward, supra.

The primary consideration in custody cases is the welfare of the children. The trial judge is in the best position to determine what is best for the children and unless it clearly appears that he has mistaken or ignored the evidence, this court will not disturb his decision. McFadden v. McFadden, 22 Ariz. 246, 196 P. 452; Bradstreet v. Bradstreet, 34 Ariz. 340, 271 P. 717; Ward v. Ward, supra.

In the order appealed from in this case, the trial court found that the plaintiff had recovered from her mental illness and that it would be to the best interests of the minor girls to be with the plaintiff. The court noted in its order that it was because of the plaintiff's mental illness that the plaintiff released her children in...