Kane v. Miller

• Decision Date: 13 September 1905
• Parties: KANE v. MILLER.
• Court: Washington Supreme Court

82 P. 177

40 Wash. 125

KANE v. MILLER.

Supreme Court of Washington

September 13, 1905

Appeal from Superior Court, Walla Walla County; Thomas H. Brents Judge.

Proceeding between Ida Kane, formerly Ida Miller, and G. N. Miller, for custody of their minor children. From the order, the mother appeals. Reversed.

Sharpstein & Sharpstein, for appellant.

Brooks & Bartlett, for respondent.

MOUNT C.J.

This proceeding was brought in the lower court to modify a decree of divorce relating to the custody of two minor children of the parties. Upon the hearing the decree was modified, so as to give the custody of the children to the father until August 25, 1905, then to the mother until February 1, 1906, and then to the father until the further order of the court. The mother appeals from that order.

The facts, as shown by the record, are in substance as follows On October 2, 1900, the superior court of Walla Walla county granted a decree of divorce to the appellant, divorcing her from the respondent on the ground of cruelty. At that time the two little boys, the fruits of the marriage, were 7 and 8 1/2 years old, respectively. In the decree the court made the following order: 'And it is now here further considered and ordered by the court that the plaintiff have, and she is hereby awarded, the custody, guardianship, and management of Edmund Clarence Miller, who was born on the 14th day of April, 1892, and Ferdinand Victor Miller, who was born on the 10th day of September, 1893, the minor children of said plaintiff and defendant, until they respectively attain the age of 10 years, or until the making of an order in the meantime relative thereto, and that the said defendant have and is hereby awarded, the custody, guardianship, and management of such children thereafter, until the further order of the court in the premises.' The decree also required the respondent to pay to the appellant $20 per month for the support of the children until they should arrive at the age of 10 years. Soon after the date of this decree of divorce the appellant took the children to Seattle, where she had property interests, and where she has since resided with them. The respondent also made his headquarters in Seattle a considerable part of the time thereafter. On May 17, 1902 the respondent was again married. He now has one child, an infant daughter, by his second wife. On May 29, 1903, the appellant was married to a man by the name of Kane. She has no children by her second marriage. The older boy became 10 years of age on April 14, 1902, and the younger on September 10, 1903. After the boys became 10 years of age, they were left with the mother. The father refused to make any provision for them after that time. The father, however, testified on the hearing in this proceeding that he demanded the custody of the older boy about the time he became 10 years of age, but that his demand was refused. He took no steps, however, to secure the custody of either of the boys after that time, until this hearing.

The evidence shows conclusively that the mother is a proper person to have their care and custody; that she is amply able to support and educate the boys; that she has kept them in school in Seattle continuously, where they have been good students and well behaved; that she has clothed them well and carefully looked after their comforts; that they have been regular attendants at Sunday school; in short, the training and care and comforts of the boys have been all that a devoted mother could give them. They are strongly attached to their mother and stepfather, both of whom reciprocate the attachment. At the time of this hearing, in March, 1905, the boys were aged 11 1/2 and nearly 13, respectively. They are apparently bright and thoughtful boys, and both stated upon the witness stand that they desired to be with their mother. They also stated that their mother had taught them to think well of their father, and that they did so. The respondent is a civil engineer by profession. His work takes him from place to place, so that up to the time of this hearing he had no fixed permanent abode. The evidence shows that he is competent and suitable to have their care and control. His present wife, when asked if she would be willing to give the boys the same care and attention that she would her own child, answered: 'Yes, I should be very happy to take them and give them all the care I can. The boys are so old now that they would be mostly under their father's control.' Upon these facts, which we think cover the substance of the evidence, the lower court modified the original decree, as follows: 'It is hereby by the court ordered that the defendant have the custody management, and control of said minor children until the 25th day of August, 1905, unless otherwise ordered by the court, and that the defendant on said date deliver to the plaintiff at her residence in the city of Seattle, county of King, the said children, if she be then ready to receive them. It is further ordered by the court that the plaintiff have the care, custody, and control of said minor children from the 25th day of August, 1905, until the 1st day of February, 1906, * * * and that defendant have the custody, management, and control of said children from that date until the further order of the court.' The order then provided that the defendant give a bond in the sum of $5,000, conditioned that he would comply with each order of the court made, and to be made herein. The effect of this order was to modify the original decree to the extent of giving the mother the...