Warnecke v. Warnecke

• Decision Date: 26 June 1947
• Docket Number: 30209.
• Parties: WARNECKE v. WARNECKE.
• Court: Washington Supreme Court

182 P.2d 699

28 Wn.2d 259

WARNECKE v. WARNECKE.

No. 30209.

Supreme Court of Washington

June 26, 1947

Department 1

Action for divorce by Louis F. Warnecke against Barbara J. Warnecke. From a judgment awarding custody of minor child to defendant plaintiff appeals.

Reversed.

Appeal from Superior Court, Lincoln County; C. A. Pettijohn, Judge.

Dyar &amp Aten, of Wilbur, and Robertson & Smith, of Spokane, for appellant.

Edward J. Reilly and Francis P. Cael, both of Spokane, for respondent.

SIMPSON Justice.

Plaintiff instituted this action for the purpose of securing a decree of divorce from the defendant, and the custody of their child. The complaint charged cruei and inhuman treatment on the part of defendant, claimed that defendant was unfit to have the custody and control of their child, and asked that the care, custody, and control of the child be given to the plaintiff.

The answer challenged the truth of the allegations contained in the complaint.

The trial resulted in the entry of an interlocutory order granting a divorce to plaintiff, and giving the custody of the child to defendant.

Plaintiff, in his appeal, assigns as error, certain findings of fact, and the order which gave the minor child to defendant.

The one question Before us is whether the trial court committed error in awarding the custody of the minor child to defendant.

In cases of this kind, the welfare of the minor children is the sole matter with which the court is concerned. Their custody is of supreme importance, regardless of the claims and personal desires of the parents. Even the wishes of children in such cases must yield to the determination of what is for their ultimate good.

Courts are never called upon to decide questions of greater concern than that of the custody of children. The courts are far-reaching consequences. The physical and wisdom because their dispositions have far-reacing consequences. The physical care of a child is of small importance compared to his moral and spiritual upbringing. Children should, if they are to be good, upright, law-abiding citizens, be surrounded by a wholesome, moral atmosphere. It is not amiss to stress the value of bending the twig so that the tree may later be inclined properly--that is, 'Train up a child in the way he should go: and when he is old, he will not depart from it.' Prov. 22:6.

It has been found true that a child may suffer abuse; it may be reared in poverty; it may be surrounded by unwholesome quarters where cleanliness is not stressed, and still grow up to be a useful citizen of our country. But if a child is surrounded by immoral influences, those influences will make an indelible impression for bad in his heart, and in his mind. From such surroundings is born the delinquent child who may later become an inmate of our penal institutions.

Before giving our reasons for a decision, we deem it necessary to set out at some length the admitted facts, and some of the evidence introduced by the parties.

Appellant and respondent were married June 7, 1942. One child, a girl, was born to this union. Appellant was inducted into the United States army March 18, 1943, and was sent overseas April 10, 1944. He received an honorable discharge from the army October 28, 1945. After their marriage, the parties lived for a time in Spokane, where appellant was employed in a Safeway store. When he entered the service, his wife went to live with his parents at Wilbur, and stayed there about nine months. She then moved into a house in Wilbur, and later lived in an apartment. During the time appellant was in the service, respondent received an allotment--$80 per month until October 2, 1944, and $100 per month thereafter, another child having been born to respondent on that date. Respondent testified that appellant was not the father of the child. At certain times during the time appellant was in the service, respondent would attend dances and remain away from home overnight, and at one time left for a dance on Saturday evening, and didn't return home until Monday. Respondent admitted being drunk on the last occasion mentioned. At one time she wrote a letter to her husband which contained the following statement: 'I swear to God on a stack of Bibles that I will never get drunk again in my life as long as we aren't together. That is what this all leads up to. I guess I am a second Theo only I can keep from drinking and he can't.'

Concerning this letter, she testified on the witness stand as follows: 'Now, in that statement you meant to tell your husband that you had been getting drunk, but that you were going to swear off, and you were not going to get drunk again as long as you and he were not together? A. No, I didn't mean that.

'Q. What did you mean? A. I meant that I would not drink any more; but I had not been getting what you would call drunk.

'Q. You understand there is a difference between getting drunk and taking a drink? A. Yes.

'Q. You said, 'I will never get drunk again in my life?' A. Well, I had gotten drunk with Louis.'

The mother of appellant cared for her grandchild during the various times it was ill. Respondent spent a week during June, 1945 at the home of Mr. and Mrs. Peasley in Keller, Washington at the invitation of a man named Oscar McFarland. During that period of time, respondent and McFarland, according to Mrs. Peasley, spent much time together and were quite 'chummy.'

Witnesses for respondent testified that she cared for her child properly, and in their opinion, was a fit and proper person to care for her minor child.

At the close of the trial, the court stated:

'* * * Under the testimony, as I find it, the plaintiff must be granted an interlocutory decree of divorce. The defendant has wilfully violated her marital obligations. Her stepping aside from the path of rectitude has not been condoned by the plaintiff husband. No blame can be attached to him for that attitude. The defendant has sinned, and sinned grievously. She has not shown the moral stamina and stability which this child now of the age of about three and a half years has the right to expect from a mother. * * *

'Nothing has been said here by any of the witnesses which reflects in any way upon the plaintiff in this case, the husband, and father of this child. He was a reputable citizen and I believe he will do the best he can if the Court should award the child to him, to see that it is properly supported, educated, instructed, and maintained. Is he in a position to do that better than the mother? * * *

'Taking everything into consideration, and with the knowledge that this mother has stepped aside from the path of virtue and has not at all times conducted herself as she should, does it not appear that, taking everything into consideration for the present, at least, and subject to the further order of the Court, depending upon her future conduct, that the best welfare of this child will be provided by awarding its custody to the defendant, subject to the further order of the Court, and that such methods may be found by the Court as may be necessary for the welfare of the child?'

Thereafter, the court made findings of fact, a portion of which are as follows:

'V. That the defendant during the marital relation aforesaid has been guilty of cruel treatment of and personal indignities toward the plaintiff, rendering his life burdensome, in that, among other things, the defendant contrary to the wishes of the plaintiff has consorted with strange men, unknown to plaintiff, thereby causing plaintiff great mental anguish and distress of mind and has manifested a lack of affection and an unconcealed aversion for plaintiff.

'VI. That the defendant has been guilty of drunkenness and by reason of her conduct, aforesaid, the defendant has destroyed plaintiff's affection for her, and it is impossible for the plaintiff and defendant to again live as husband and wife.

'VII. That the minor child of the parties to this suit is of the tender age of three and one-half years and requires and demands the care and attention that only her mother can give. That notwithstanding the fact that the defendant has stepped aside from the path of virtue, she has at all times properly looked after the physical needs of her child. That the welfare of this child will best be provided for, at least for the present, by awarding its custody to the defendant, subject to the further order of the court.'

A review of our decisions on the question now Before us, seems appropriate at this time.

In Kentzler v. Kentzler, 3 Wash. 166, 28 P. 370, 28 Am.St.Rep. 21, this court reversed a judgment giving the children to their mother where it appeared that she was without property, had no means of support, save her personal earnings of $15 per month, was in poor health, and lived with her mother in immoral surroundings, and that the father was an industrious and sober man, earning $100 per month.

Cozard v. Cozard, 48 Wash. 124, 92 P. 935, does not set out much of the testimony. It is evident, however, that the mother was denied custody because she had committed certain acts of adultery.

In Freeland v. Freeland, 92 Wash. 482, 159 P. 698, 699 this court considered an appeal from an order modifying the decree of divorce. The evidence relating to the character and reputation of the parties was not set out in that opinion. This court made the following statement: 'The proofs of the appellant were to the effect that respondent had been indiscreet in her conduct with men subsequent to her divorce. Nothing, however, was established showing moral turpitude on her part. But the fact that the conduct of a mother is not what others might think the most proper is not sufficient of itself to deprive her of the right to the permanent or...