Young v. Young., 4684.

• Decision Date: 09 April 1942
• Docket Number: No. 4684.,4684.
• Citation: 124 P.2d 776,46 N.M. 165
• Parties: YOUNGv.YOUNG.
• Court: New Mexico Supreme Court

46 N.M. 165

124 P.2d 776

YOUNG

v.YOUNG.

No. 4684.

Supreme Court of New Mexico.

April 9, 1942.Rehearing Denied May 5, 1942.

Appeal from District Court, Santa Fe County; David Chavez, Jr., Judge.

Suit for divorce by Laverne Frederick Young against Lawrence Young. From a decree modifying a divorce decree by awarding the custody of the parties' minor children to plaintiff, defendant appeals.

Affirmed.

A minor child's natural mother has claim, superior to that of child's paternal grandparents, to custody of child, if other things are equal.

J. D. Mell and M. W. Hamilton, both of Santa Fe, for appellant.

Arthur Livingston, of Santa Fe, for appellee.

SADLER, Justice.

This appeal involves the custody of two infant children of the marriage between plaintiff (appellee) and defendant. The parents were divorced by a decree entered by the district court in this cause on the 10th day of June, 1938. The decree awarded the custody of Loretta, then slightly under two years of age, to the defendant, her father, and the custody of Doris, then slightly under one year of age, to the plaintiff, her mother.

Neither parent being then in position to care for the children, their immediate care and custody was placed by both parents with their paternal grandparents where, as the record bespeaks, they were well provided for. Subsequently, and on the 22nd day of August, 1938, the plaintiff was remarried to one Dale Dennison. Thereafter and in the latter part of March, 1939, the plaintiff reclaimed from the paternal grandparents the custody of the younger child, Doris, whose custody had been awarded her by the final decree as already stated.

Thereafter, on the 11th of May, 1939, the defendant filed in the cause a petition alleging the plaintiff was not so situated that she could properly and adequately care for the younger child; that she was not a fit and proper person to have the custody of such child; that defendant's parents were fit and proper persons for the custody of this child and were able and willing to assume the responsibility of her care and education. He prayed that an investigation be made and that upon final hearing custody of the child be awarded to his parents, the paternal grandparents of the child.

The plaintiff answered, denying the material allegations of the petition and by cross-bill alleged that she, the mother of the children, had been remarried; that she had a home; that she was a fit and proper person to have the care and custody of both children; and that she was so situated that she could properly and adequately care for them. She prayed in effect that the custody of the younger child, Doris, awarded her by the final decree, be confirmed and that the provision of the final decree awarding the custody of Loretta, the elder child, be revoked and her custody awarded to plaintiff.

After several hearings at which testimony of the parties and of various witnesses was adduced by both sides, the court made findings of fact and its conclusion of law as follows:

“Findings of Fact.

“1. That the plaintiff and cross-petitioner, LaVerne Young, now Mrs. LaVerne Dennison, the natural mother of Loretta Young, born August 11th, 1936, and Doris Young, born August 10th, 1937, is a fit and proper person to have the care, custody and control of said minor children.

“2. That Dale S. Dennison, the husband of LaVerne Dennison, is willing that his wife have the care, custody and control of her two children; that he is a fit and proper person to be the step-father of the said children; that he is financially able to furnish proper and sufficient support, maintenance and education for the said children.

“3. That the paternal grandparents of the...