Brasher v. Brasher

[868]

FLEMING, J.

This is an appeal from an order modifying the child custody and support provisions of a judgment of divorce. The modification order transferred custody of the two minor children from the mother, Daisy Jane Brasher, to the father, Harry Brasher, Jr., and terminated child support payments to the mother. Although the modification order reserved reasonable visitation rights to Daisy, it suspended their exercise until such time as Daisy remarried or no longer had physical custody of her forthcoming unborn child. Daisy has appealed.

In July 1963 Daisy secured an interlocutory decree of divorce from Harry and was awarded custody of Robert and David, then aged 7 and 6. A final judgment of divorce was entered in July 1964. In June 1963 Daisy began living with Thomas Royer and went under his name until September 1964, when her relationship with Royer .ended. In 1965 she became pregnant, and at the time of the modification hearing in February 1966 she expected to deliver a child in March 1966. Daisy testified that neither Harry nor Royer had fathered her unborn child and that she intended to place the expected child for adoption. Daisy worked in Jerry’s cafe as a waitress from 5:30 a.m. to 1:45 p.m. While she worked, her two children were taken care of by neighbors, who had also agreed to care for them during her confinement.

Harry remarried in 1964, and at the time of the hearing his present wife, Jane, was 20 years old. They had a child of their own. Harry worked in a family business, earned takediome pay of $148 a week, and had recently purchased a four-bedroom home into which he expected to move shortly. Although Jane was relatively young to take care of children, aged 10 and 9, she testified she would do so as a full-time housewife.

1. The evidence was sufficient to justify the court’s order directing a change in custody. Child custody cases turn on what is best for the child. In determining what is best for the child, the trial court, with the parties and witnesses before it, has the benefit of the formal evidence and, as well, its observations of the conduct, attitude, and demeanor of the opposing parties. Since important elements of the problem are not necessarily contained in the testimony nor easily deduced from the written record, a strong presumption favors the decision of the trial court, which will only .be overturned on a clear and convincing showing of abuse.