Martin v. Martin

• Decision Date: 07 March 1947
• Docket Number: 30082.
• Parties: MARTIN v. MARTIN.
• Court: Washington Supreme Court

178 P.2d 284

27 Wn.2d 308

MARTIN v. MARTIN.

No. 30082.

Supreme Court of Washington

March 7, 1947

Department 2

Action by Robert H. Martin against Beverly Martin for divorce. From interlocutory decree granting a divorce and awarding custody of only child of the parties to the plaintiff, the defendant appeals.

Affirmed.

Appeal from Superior Court, King County; Roger J Meakim, judge.

Chavelle & Chavelle, of Seattle, for appellant.

Lenihan & Ivers, of Seattle, for respondent.

HILL Justice.

By the interlocutory decree entered herein on June 25, 1946, the respondent was granted a divorce and was awarded the custody of the only child of the parties, then two years and nine months old, with the proviso

'* * * that said child * * * is hereby made a ward of the Juvenile Court under the jurisdiction of the Superior Court of the State of Washington, in and for the County of King.'

This decree was predicated upon a finding that appellant was not and that respondent was, a fit and proper person to have the custody of the minor child. There was also a finding that the respondent intended '* * * to establish a residence in the Province of British Columbia, Canada, and if awarded the custody of the minor child of the parties, will remove said child to said residence.'

From these findings the court concluded that custody of the child should be awarded to the respondent but that, because of his intention '* * * to establish residence in a foreign jurisdiction said child should, by the decree herein, be made a ward of the Juvenile Court under the jurisdiction of the Superior Court of the State of Washington, in and for the County of King.'

The appellant makes three contentions:

1. The trial court erred in depriving her of the custody of the child.

2. The trial court erred in decreeing that the child be removed beyond the jurisdiction of the court.

3. The trial court erred in depriving the appellant of the privilege of visitation.

To review the testimony in this case at any length would be a disservice both to the appellant and to the child. The finding that the appellant is not a fit and proper person to have the custody of the child is amply supported by the evidence. Before the action was commenced, her own father was of the same opinion. We have recognized that infatuation with a man other than her husband, and even adultery if not promiscuous, does not necessarily mean that a mother should be deprived of the care and custody of a child of tender years. Norman v. Norman, Wash., 176 P.2d 349. However, we have here a case in which the trial judge's statement in his oral opinion, 'This young woman is wholly without character,' gives an accurate summation. When confronted with a situation in which she was advised that if she made a certain trip, she would lose the custody of her child, the love which her counsel stressed so strongly in the oral argument was not strong enough to deter her from following her own inclinations and selfish desires.

The conduct and attitude of the respondent toward the appellant is not above reproach, but there is nothing in the record Before us that can challenge the trial court's finding that he is a fit and proper person to have the custody of his daughter.

Appellant had much to say in her brief and in the oral argument concerning the advantages of her parents' home as a place to take care of the child. Her parents are unquestionably admirable people and their home a very desirable one. However, if she were given custody of the child she could remove her from that home at any time, as the record shows that she has done heretofore.

Appellant labors the point that the child will be on a cattle ranch in British Columbia, and that the nearest town will be Lone Butte, some twenty-eight miles distant. We are not prepared to say that children raised with all the advantages of a metropolitan environment are superior to those who come from the 'Lone Buttes.' When we see what city life has done for the appellant, we are disposed to believe that the 'rugged wilds of Canada' referred to in her brief will not be entirely disadvantageous to her daughter.

The interlocutory decree contains no express permission to the respondent to remove the child from the jurisdiction of the court, but it was recognized by both parties and by the trial court that the child would be taken to British Columbia if the respondent was awarded her custody. We are, in effect, asked to modify the decree to prohibit that removal, and that we decline to do. The respondent desires to engage in the business of cattle raising, working with his father and mother on their ranch. It is a perfectly natural and laudable desire. He has the responsibility of making a living for himself and of adequately supporting and caring for the child, and his opportunities of so doing should not be unduly restricted. His mother had taken care of the child for approximately nine months prior to the trial and, while the responsibility for the child's care is his, his mother doubtless would give the little girl more devoted care than anyone he could employ for that purpose. The best interests of the child will be served by permitting respondent to take her to the ranch in British Columbia, where she can be with him and, also, have the advantage of his mother's care and supervision.

We have, on several occasions, authorized the removal of a child from the jurisdiction of the court. Kirby v. Kirby, 126 Wash. 530, 219 P. 27; Jeschke v. Jeschke, 16 Wash.2d 617, 134 P.2d 464; Goade v. Goade, 20 Wash.2d 19, 145 P.2d...