Ward v. Ward

• Decision Date: 30 June 1960
• Docket Number: No. 6995,6995
• Citation: 88 Ariz. 130,353 P.2d 895
• Parties: Dowell P. WARD, Appellant, v. Aurelia C. WARD, Appellee.
• Court: Arizona Supreme Court

Page 895

353 P.2d 895

88 Ariz. 130

Dowell P. WARD, Appellant, v. Aurelia C. WARD, Appellee.

No. 6995.

Supreme Court of Arizona.

June 30, 1960.

W. C. Ferguson, Holbrook, and C. D. McCauley, Winslow, for appellant.

Marshall W. Haislip and Minne & Sorenson, Phoenix, for appellee.

UDALL, Justice.

This is an appeal from an order of the trial court denying appellant's motion for modification of certain provisions of a divorce decree governing the custody of the minor child of the parties herein. The original divorce action was instituted by appellee Aurelia C. Ward (since remarried to one Dotts) against Dowell P. Ward, the appellant. The parties will hereinafter be referred to as they appeared in that action, i. e., as plaintiff and defendant.

As grounds for divorce plaintiff's complaint alleged cruel treatment on the part of defendant. She further demanded custody of the child, Paul Carroll Ward, then six years old, alleging her own fitness and defendant's unfitness to have such custody. Judgment was entered for plaintiff, granting the divorce, settling the property rights of the parties, and awarding care, custody and control of the minor child to plaintiff, the mother. Defendant was ordered to contribute $65 per month for the support of the child. The trial court made no findings of fact, and no transcript of these proceedings has been furnished. The following provision was included in the decree with respect to defendant's visitation rights:

'That the care, custody and control of the minor child of plaintiff and defendant, to wit: Paul Carroll Ward, be, and is hereby, awarded to plaintiff with visitorial rights extended to defendant once a month for a period approximating three hours, the defendant to give plaintiff at least two days notice of the time of his visitation; and, said child shall not be removed from the jurisdiction of this Court without order of the Court in writing except for short periods of time which will not interfere with the visitorial rights of the defendant.'

This judgment was dated January 25, 1955. No appeal was taken therefrom.

In the spring of 1957, defendant petitioned the trial court to exercise its continuing jurisdiction over the divorce decree and to modify the provision above set out by awarding custody to the father for the summer months of each year. Plaintiff's response to this petition relied on two points: that there had been no change of circumstances sufficient to justify a modification of the decree; and that defendant '* * * is not a fit and proper person to have part-time custody of said child, and his morals are such as would make it detrimental to the best interests of said child to be placed in his custody for any time whatsoever.'

On June 3, 1957, a hearing was held on this petition, the transcript of which is now before us. At the close of the evidence, the Court said simply: 'The court is going to deny your petition * * *.' No findings were made in regard to the allegations of the plaintiff's response above referred to.

The third proceeding, which gave rise to the instant appeal, was commenced in the summer of 1959. Again defendant made formal application for a modification of the decree as respects visitation rights, and again plaintiff resisted the motion. In her response plaintiff once more relied on claims that no change of circumstances had occurred and that defendant was not a fit person to have custody of the child. This time plaintiff omitted any reference to alleged immorality on the part of defendant. In ruling against defendant, the court declared:

'I am of the opinion that the evidence does not show any noticeable change of circumstances, therefore, the Petition to Modify the Decree is hereby denied.'

This appeal followed, under A.R.S. § 12-2101, subd. C. See, Cone v. Righetti, 73 Ariz. 271, 240 P.2d 541.

It is well settled that a condition precedent to the modification of the child custody provisions of a divorce decree is a showing of changed circumstances affecting the welfare of the child. Davis v. Davis, 78 Ariz. 174, 277 P.2d 261; Burk v. Burk, 68 Ariz. 305, 205 P.2d 583; Schulze v. Schulze, 79 Ariz. 86, 284 P.2d 457; Cone v. Righetti, supra. However, if a change in circumstances is proved, the court which entered the decree has continuing jurisdiction to order a modification thereof, in the exercise of its sound judicial discretion. Grimditch v. Grimditch, 71 Ariz. 198, 225 P.2d 489; Barrett v. Barrett, 44 Ariz. 509, 39 P.2d 621. The change of circumstances rule as a limitation on modification of a divorce decree is one aspect of the principle of res judicata. Elders v. Elders, 206 Ga. 297, 57 S.E.2d 83; Evans v. Evans, 195 Miss. 320, 15 So.2d 698; Goodman v. Goodman, Tex.Civ.App., 236 S.W.2d 641; Goldson v. Goldson, 192 Or. 611, 236 P.2d 314; Meredith v. Meredith, 203 Or. 45, 276 P.2d 387; Brim v. Struthers, 44 Wash.2d 833, 271 P.2d 441. The court, in issuing the original decree, found that the arrangement, therein set out was for the best interests of the child. No appeal having been taken, this decision became final, upon the facts then before the court, and no alteration will be made without a showing that the factual situation has changed to such an extent that the original decree can no longer reasonably be expected to serve the purpose. Cf., Burk v. Burk, supra; Cone v. Righetti, 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. Davis v. Davis, supra.

It is axiomatic, in this filed of the law, that the primary consideration is the welfare of the child. The trial court is given broad discretion in determining what will be most beneficial for the child. Grimditch v. Grimditch, supra. The trial court's judgment in this regard cannot be set aside unless it clearly appears that the court abused its discretion. Gottelf v. Gotthelf, 38 Ariz. 369, 300 P. 186; McFadden v. McFadden, 22 Ariz. 246, 196 P. 452; Bradstreet v. Bradstreet, 34 Ariz. 340, 271 P. 717. However, it should be noted that, in the order appealed from in the instant case, the trial court did not determine that the modification sought by defendant would be against the child's best interests. The court did not reach that point, having concluded the proceedings by its finding that no change in circumstances had occurred. We therefore address ourselves first to the question of changed circumstances, for if the court below was correct in its decision thereon, then the matter is at an end.

At the time of the entry of the original divorce decree in 1955, the pertinent facts were as follows: Plaintiff resided in Snowflake, Arizona, and defendant lived on his ranch 21 miles from that town. Plaintiff had been granted a divorce on grounds of cruelty, the defendant having presented no cefense to the action. The child was six years old. Upon these facts, the trial court found that the best interests of the child required that custody be given to the mother, with the monthly visitation rights described above accorded to the father.

In August 1959, when the order now appealed from was entered, the facts were these: Plaintiff had remarried and moved to Phoenix, the home of her new spouse. Defendant, still living on his ranch near Snowflake (some 250 miles from Phoenix), had not remarried. The child was eleven years old (he is now twelve). Although some subsequent misconduct on the part of defendant had been suggested, no proof thereof had been offered. The child had expressed a desire to visit his father on the ranch and to learn something of the ranching business. It was asserted that the boy was large and robust for his age and had shown an interest in horses and cattle. The summer climate of the mountain country near Snowflake is considerably more pleasant than the extreme heat of Phoenix. Because of the distance from the ranch to Phoenix, defendant had experienced considerable difficulty in exercising his visitorial rights, although he had never failed to make his monthly visit, even though this involved a 500 mile trip in order to spend three hours with the child. Defendant testified that plaintiff and her husband, through their attitudes toward him, were turning the son against his father.

Upon these facts the trial court found that there had been no change of circumstances. There being no conflict in the evidence, we hold that the court erred, as a matter of law, in this determination. Perhaps no single one of the uncontroverted facts set out above would in itself amount to a change of circumstances. However, taken together, they had sufficient impact to require a reconsideration of the entire question of custody. Therefore the trial court should have considered the merits of defendant's claim that the child's welfare would be advanced by his spending his summer school vacations on the ranch with his father.

While a substantial increase in distance between the home of the child and the noncustodial parent may not alone justify a modification of the decree, it has been recognized as an important factor. Read v. Read, 103 Cal.App.2d 721, 230 P.2d 46; Cowen v. Cowen, 100 Cal.App.2d 366, 223 P.2d 666; Hughes v. Hughes, 180 Or. 575, 178 P.2d 170; McGetrick v. McGetrick, 204 Or. 645, 284 P.2d 352; Raw v. Raw, 195 Or. 373, 245 P.2d 431. The declared policy of this state, is announced by the legislature, is that the age of the minor child is a significant consideration in determining custody. See A.R.S. § 14-846, subd. B, hereinafter discussed; and see McFadden v. McFadden, supra. The statute also states the rule, followed at common law, that the expressed desires of the child 'of sufficient age to form an intelligent preference' are persuasive, although not themsleves controlling. A.R.S. § 14-846, subd. A. And the authorities agree that the alienation of a child from his natural parent should be avoided where possible. Reynolds v. Reynolds, 45...