Morgan v. Morgan

GRIFFIN, J.—

In an action by plaintiff for a divorce on the grounds of extreme cruelty the court granted her a divorce, awarded her custody of one minor child (then aged

3Yz

years) and awarded custody of another child (Robert Morgan, then aged 2% years) to defendant.

[777]

The plaintiff appeals only from that portion of the judgment awarding custody of the child to defendant. She contends that since the trial court found that “both parties are at this time fit persons to have the custody of the minor children” it was obligated to award the custody of both children to her under section 138 of the Civil Code, subdivision 2, which section recites that neither party is entitled to the custody as of right; but “other things being equal” if the child is of tender years, it should be given to the mother. In support of this contention she cites

Loomis

v.

Loomis,

89 Cal.App.2d 232 [201 P.2d 33].

We have carefully read the record before us. Plaintiff accused defendant of intoxication and infidelity. Defendant accused plaintiff of the same acts. Evidence was produced which might warrant such a finding as to either. The question for the trial court to determine was not which one was “not a fit person” to have the custody of the children, but what was the best interest of the children.

(Miller

v.

Higgins,

14 Cal.App. 156 [111 P. 403].) The custody of a minor child may be awarded to the offending party notwithstanding the fact that a divorce has been granted against him on the grounds of his adultery or cruelty.

(In re DeLeon,

70 Cal.App. 1 [232 P. 738].) The expression “other things being equal” leaves a large measure of discretion with the trial court. It has been held that where a divorce has been denied and both parties were found fit persons to have custody, the award of the child to the father was not an abuse of discretion.