Wood v. Wood

HOUSER, J.

In an action for divorce between the parties hereto an interlocutory decree was entered in favor of the plaintiff. Thereafter, by order of the trial court, the custody of a minor daughter of the parties was awarded to the father. Some eighteen months later (by way of motion) the mother sought from the trial court a modification of the former orders, to the end that the custody of the daughter be changed from the father to the mother. It is from each of two several orders by which such change of custody of the daughter was directed that the appeal herein is taken.

Appellant first complains of an alleged irregularity which occurred on the hearing of the matter before a referee appointed by the trial court, which, as stated by appellant, consisted of an examination by the referee of the daughter as a witness without first administering to her the legal oath and without the presence of either of the parties to the proceeding; also, in forbidding either examination or cross-examination of said witness by either of counsel representing the respective parties to the action. As in connection therewith the record on appeal fairly discloses the fact that “counsel for the various parties agreed and acquiesced in the said procedure,” it is manifest that appellant is now in no position to raise any question with reference thereto.

Prejudicial error is suggested in that the referee “refused to consider in evidence matters and things that had

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transpired prior to the making of the (original) order, . . . or conditions as they existed at the time of the making of the (original) order,” by which the custody of the minor daughter was awarded to the father.

As a basis for the first order, the trial court made certain findings of fact, among which is the statement that the mother was “not a fit and proper person to have the care or custody or control of said minor child. . . . —the court having determined that the influence of the defendant (the mother) is disturbing to the child and has a tendency to retard her progress from the effect of certain former unfortunate and prejudicial influences.” No other findings of fact having been made with reference to the fitness of the mother to have the care and control of the child, and no appeal having been taken from the order which was based upon such finding, the unfitness of the mother, as of the date of said order, must be taken as having been conclusively established. The sole purpose of the later inquiry instituted by the mother was to determine whether, since the date of the former order, such an intrinsic change had taken place in'the character of the mother and her surroundings, as manifested by her then disposition, proclivities and general conduct since the rendition of the former order, as would justify the conclusion that, considering the then surroundings of the father and the daughter, the mother was more fit and proper than the father to have the care, custody, control and rearing of such child.