Becker v. Becker

VALLÉE, J.

Appeal from an order modifying a prior order made in an action for divorce with respect to the custody of a minor child. Michael H. Becker is the father of the child. Goldie Becker is the paternal grandmother. Lola Becker is his mother. The child is under the age of 14 years.

On January 18, 1945, the father was granted an interlocutory decree of divorce. The decree awarded custody of'the child to the mother. On December 19, 1945, an order was made modifying the provision of the interlocutory decree by awarding custody of the minor to the paternal grandmother. On January 24, 1946, a final decree was entered which provided that the provision in the interlocutory decree with respect to custody of the child should be continued in force. On October 22, 1948, the court made an order reading as follows:

“The Court Finds that it is to the best interests of the minor child of the parties hereto to remain in the custody of the paternal grandmother, Goldie Becker; that both plaintiff and defendant are fit and proper persons; as between the two parties to this action, it is to the best interests of the minor child that custody be given to the defendant.

[832]

“It is Obdebed that the order herein made on December 19, 1945, and filed on December 24, 1945, modifying the Interlocutory Judgment of Divorce herein re custody of minor child, and said Interlocutory Judgment of Divorce and Pinal Judgment of Divorce are hereby modified, as follows:

“It is Fubtheb Obdebed that the custody of the minor child of the parties hereto be awarded to the defendant, Lola Becker Terhorst, subject to reasonable visitation by the plaintiff.’’ The father and the paternal grandmother appeal from the latter order.

Appellants contend that: (1) the court erred in awarding custody to the mother in face of the express finding that it is to the best interest of the child to remain in the custody of the paternal grandmother, and (2) the court erroneously applied the law to the facts.

The court did find that it is to the best interest of the child to remain in the custody of the paternal grandmother, but it also found that the mother was a fit and proper person and that it is to the best interests of the child that custody be given to the mother. The latter finding is sufficient to support the order.