McClendon v. McClendon

Full title: MARJORIE JEAN MCCLENDON, Respondent, v. MILO LOCK MCCLENDON, Appellant

Court: The Supreme Court of Washington. Department One

Date published: Feb 17, 1950

214 P.2d 708 (Wash. 1950)

214 P.2d 708

35 Wash. 2d 702

Opinion

No. 31228.

February 17, 1950.

DIVORCE — MODIFICATION OF DECREE — CUSTODY OF CHILD — MISCONDUCT OF MOTHER — EVIDENCE — SUFFICIENCY. In a proceeding by a divorced father to have the custody of the two-year-old son of the parties transferred to him because of the alleged misconduct of the mother, held that the evidence, while it disclosed facts which indicated that the mother was indiscreet, does not preponderate against the trial court's finding that the evidence was insufficient to warrant taking the child from his mother's custody.

Appeal from an order of the superior court for King county, Long, J., entered June 23, 1949, denying a petition to modify an interlocutory order of divorce with respect to the custody of the child of the parties. Affirmed.

Higgins, Thompson Borberg, for appellant.

Carkeek, Harris Harris, for respondent.

SCHWELLENBACH, J.

This is an appeal from an order denying a petition to modify the interlocutory order in a divorce case.

On March 15, 1949, respondent obtained an interlocutory order of divorce from appellant, and was awarded the custody of the two-year-old infant son of the parties. On June 4, 1949, the father petitioned to modify the order of March 15th, and for an award of the custody of the child to him because of alleged misconduct on the part of the mother. At the close of the petitioner's testimony, the trial court denied the petition, holding that there was not sufficient evidence to warrant taking the child from the custody of the mother.

[1] Although the evidence disclosed facts which, to say the least, indicated that the mother was indiscreet, we are constrained to hold that the evidence does not preponderate against the trial court's findings. This does not mean, however, that the father would be foreclosed from again petitioning for a change of custody, if, in the future, facts would warrant such action. A child of tender years is entitled to more than the love and tender care of a mother. It is entitled to the love and tender care of a good mother.

The order appealed from is affirmed.

SIMPSON, C.J., BEALS, GRADY, and DONWORTH, JJ., concur.