Nedrow v. Nedrow

• Decision Date: 26 January 1956
• Docket Number: No. 33382,33382
• Citation: 48 Wn.2d 243,292 P.2d 872
• Court: Washington Supreme Court
• Parties: Donald NEDROW, Respondent, v. Betty Lou NEDROW, Appellant.

Page 243

48 Wn.2d 243

292 P.2d 872

Donald NEDROW, Respondent, v. Betty Lou NEDROW, Appellant.

No. 33382.

Supreme Court of Washington, Department 1.

Jan. 26, 1956.

Rehearing Denied Feb. 29, 1956.

O'Leary, Meyer & O'Leary, Olympia, for appellant.

Lynch & Lynch, Olympia, for respondent.

FINLEY, Justice.

This case involves a post-divorce controversy respecting child custody. The parties were married at Olympia, Washington, on June 20, 1950. On September 23, 1953, Donald Nedrow was awarded a divorce from Betty Lou Nedrow because of alleged misconduct on her part while he was away from home in the Army. Despite the alleged misconduct, the trial court found that Betty Lou Nedrow was a fit and proper person and placed in her custody the two-year old daughter of the parties, Donna Jean. The father was permitted 'the right of visitation with and the right to be visited by said minor child at all reasonable times and places * * * including the right * * * to have the custody of said child for one month during the summer * * *,' and for the three summer vacation months when the child reaches school age. The decree did not prohibit the mother from removing the child from the state of Washington.

In the divorce proceedings, Donald Nedrow disclaimed paternity of a second child born to Betty Lou Nedrow while he was in the armed services. Subsequently, on June 5, 1954, Betty Lou married Norman Ossman; on October 2, 1954, Donald Nedrow also remarried. On October 7, 1954, Donald Nedrow filed a petition, alleging that his former wife was not a fit and proper person to have the custody of their minor daughter, Donna Jean; that Donna Jean was being neglected and was not being taken care of properly by her mother. The petitioner requested that custody of Donna Jean be transferred to him. After a hearing on the petition, the trial court made a finding as follows:

'* * * the mother of said minor child of the parties is a fit and proper person to have the care, custody and control of said minor; * * * that the minor child of the parties since the marriage of the defendant and her present husband has made her home with the defendant and her present husband. The court finds that said minor child at all times since the divorce of the parties hereto has had good care; that defendant's husband is willing and anxious that said minor child be allowed to remain with defendant and him and is willing to care for her.' (Emphasis supplied)

The petition for a transfer of custody was denied.

The record before us shows the following: That Norman Ossman, the present husband of Betty Lou, was discharged from the United States Army on April 15, 1955; that he is twenty-three years of age, a high school graduate, and that, before entering the Army, he was employed for three years as a fire insurance adjuster by the Underwriters Salvage Company of Chicago, Illinois; that, after his discharge from the Army, his former employer offered him his old job in Chicago at a salary of four hundred dollars per month; that the Ossmans planned to go to Chicago to enable the husband to accept the offer of employment; that they planned to take Donna Jean with them and to live with Norman's mother, who, with her minor son, lives in a three-bedroom home which she owns in a suburb of Chicago; that, in contemplation of the move to Chicago, the Ossmans' belongings and household goods were shipped to Chicago by the Army.

At this juncture in the plans of the Ossmans Donald Nedrow petitioned the trial court, on April 6, 1955, for an order prohibiting his former wife from removing Donna Jean from Olympia, Washington. An affidavit was filed against the trial judge who had heard both the divorce case and the first petition for custody modification, mentioned above. Consequently, a different trial judge heard the petition for an order prohibiting the removal of Donna Jean from the state of Washington. After the hearing, he entered the following finding of fact:

'The court finds that since entry of the decree of divorce in this cause plaintiff has exercised his right of visitation with his child on frequent occasions, and that his visits with his child show genuine interest in said child; that the testimony further shows the said minor child is extremely fond of plaintiff and looks forward to visitation with him; that the testimony and record show that the welfare of said minor child will best be served by insuring plaintiff's right of visitation with his child and by insuring the child's opportunity of visitation with the plaintiff; that in the event defendant were allowed to remove the minor child from the state of Washington the legal effectiveness of any further order of this court in this matter would be seriously impaired.'

The avove so-called finding and the remarks of the trial judge in the record indicate that for two reasons he was genuinely concerned over the Ossmans' proposal to move the minor child to Chicago: (1) He reasoned that a move to Chicago would place the minor child beyond the jursidiction of the trial court and, from the standpoint of practicable considerations would militate against supervision of her custody by the courts of the state of Washington; and (2) he reasoned that the move to Chicago would deprive both the father and the minor child of the opportunity of visitation with each other, which, he concluded, would not serve the best interests and welfare of the child. An order was entered prohibiting the removal of Donna Jean from the state of Washington.

In this appeal from the latter-mentioned order, error is assigned to the above-quoted finding of fact to the conclusions of the trial judge based thereon, and to the entry of the order prohibiting removal of the minor child from the state of Washington.

We have said on numerous occasions that questions relative to the custody of minor children and questions regarding the frequently conflicting interests of divorced parents in such matters are perplexing; and that it is extremely difficult, if not impossible, to accede to the desires of all concerned. Some inconvenience, some disappointment, and even some heartbreak and sorrow is almost inevitable. The present case is no exception. In most such cases custody must be given to either one parent or the other, and there is simply no possible way for the courts to recognize and to give support to all of the often conflicting custodial or visitation claims of divorced parents. In the case at bar, originally, the divorce court definitely found that the mother was a proper person to have custody; and consequently, the custody of the minor child was awarded to her. Thereafter, the father attempted to show that the child was being neglected and that the mother was unfit to have custody. Once again, the trial court found that the mother was a proper person to have custody, that the child was not being neglected, and that the mother was providing proper care for her minor daughter. Later, further complications arose because of the offer to Norman Ossman of employment in Chicago and his understandable desire to accept the offer and to move his new family to Chicago. We are most sympathetic with the trial judge and his efforts to find some solution for the apparently irreconcilable conflict of interests involved in this case. However, after reviewing the record carefully, and after careful analysis of his reasons for prohibiting the removal of the minor child from the state of Washington, we reluctantly must disagree with the trial judge as to his attempted solution of the problem involved. In the first place, although removal of the minor child from this state may present certain problems in connection with the enforcement of any subsequent orders by the trial court regarding her welfare and custody; nevertheless, we have said in a number of decisions, and it has been pointed out in numerous cases from other jurisdictions, that a court originally having cognizance of a custody matter has a continuing jurisdiction to supervise custody. This continuing jurisdiction is generally recognized by the courts of other states, and these have concurrent jurisdiction to supervise matters of custody and welfare by reason of the physical presence of minors within such states. 154 A.L.R. 552, 559; Martin v. Martin, 27 Wash.2d 308, 178 P.2d 284; Lane v. Lane, Mo.App.1945, 186 S.W.2d 47; Coats v. Coats, 161 Kan. 307, 167 P.2d 290. See, also, Butler v. Butler, 83 N.H. 413, 143 A....