Rice v. Rice, Civil 2821

• Decision Date: 20 January 1930
• Docket Number: Civil 2821
• Citation: 283 P. 922,36 Ariz. 190
• Parties: RICHARD M. RICE, Appellant, v. IOLA CLARA RICE, Appellee
• Court: Arizona Supreme Court

283 P. 922

36 Ariz. 190

RICHARD M. RICE, Appellant, v. IOLA CLARA RICE, Appellee

Civil No. 2821

Supreme Court of Arizona

January 20, 1930

APPEAL from a judgment of the Superior Court of the County of Cochise. Albert M. Sames, Judge. Affirmed.

Mr Alexander Murry and Mr. Jared D. Taylor, for Appellant.

Mr. J T. Kingsbury, for Appellee.

OPINION

ROSS, J.

This is an appeal from an order denying a motion to amend a decree awarding the custody of Joe Edward Rice, an infant.

On August 18th, 1925, the mother, Iola Clara Rice, to whom we shall refer as appellee, sued the father, Richard M. Rice, to whom we shall refer as appellant, for a divorce and the custody of their minor child, Joe Edward Rice, then two years old, alleging extreme cruelty as grounds for divorce. Appellant in a cross-complaint charged appellee with desertion and asked for a divorce and the custody of the child. The case was tried in October, 1927, and resulted in a decree granting a divorce to appellant and the apportioning of the child's custody to the parents as follows: To the appellee, the child then nearing school age, during the school year, or from September 1st to June 1st, and to the appellant from June 1st to September 1st of each year; and in the decree it was provided that the appellant should contribute the nine months he was in appellee's custody. The court found that both the parents were fit persons to care for the child.

The grounds of the motion, filed September 1st 1928, were (1) that appellee had no legal or permanent place of abode, and was not so situated as to be able properly to care for the child; (2) that appellant's situation enabled him to provide a better home for the child, and that the child's best interests demanded that he have his custody, care and control; and (3) that, although appellee had started divorce proceedings, appellant was awarded the divorce, and, being a proper person to care for and rear the child, should have his custody.

After hearing the evidence in behalf of and against the motion, the court denied it. The evidence on the grounds (1) and (2) is to the effect that neither appellant nor appellee has a home or keeps house; that both work out for a living, the appellant as a cowboy most of the time, but sometimes as a miner, and the appellee as a drug clerk and waitress. When it comes to appellant's time under the decree to have the child's custody, he has left him with his parents, who look after and care for him, appellant spending more or less time with his child. When the time comes for appellee to have the child under the decree, she has left him with her parents, who look after and care for him. So, on the score of a suitable place for the child to live, the scales are pretty evenly balanced. Neither party has been so situated as to give the child much personal attention, and, as long as their status remains that of employees, it seems probable the immediate care and control of the child will be left largely to others.

The court heard the evidence on the question as to which of the parents could or had most suitably provided a home for the child, and refused to disturb the decree as originally entered, and we cannot say he erred therein.

Appellant contends that the practical result of the disposition of the child's custody under the facts is an award of it to the maternal grandparents. This is asserted, not only because the appellee has in the past left the child with his maternal grandparents, but in her testimony admitted an intention to continue to do so until she was able personally to...