Opinion
Rehearing Denied June 21, 1945.
Hearing Granted July 26, 1945.
Appeal from Superior Court, Humboldt County; Harry W. Falk, Judge.
Suit by Rosemary Munson against Walter C. Munson for annulment of the marriage between the plaintiff and defendant. From an order modifying a decree of annulment and changing the custody of the minor child of the parties from plaintiff to defendant, plaintiff appeals.
Reversed.
Blaine McGowan, of Eureka, for appellant.
Chester Monette, of Eureka, for respondent.
OPINION
ADAMS, Presiding Justice.
This is an appeal from an order modifying a decree of annulment of the marriage between plaintiff and defendant, and changing the custody of the child of the parties from the mother to the father.
The evidence shows that plaintiff and defendant intermarried November 6, 1941; that at that time defendant had another wife living from whom he was not divorced, though this fact was unknown to plaintiff. The latter subsequently filed an action to annul said marriage. Defendant made no appearance, and on March 31, 1944, a decree of annulment was made and entered, said decree also providing that the minor child of the parties, then aged twenty months, be awarded to plaintiff, defendant being granted the right to visit said child at all reasonable times and places, defendant to pay plaintiff the sum of $30 per month for the support of such child. The provisions regarding the child’s custody conformed to an agreement entered into between the parties settling such property rights as they had and providing that plaintiff should have the custody of her child. Less than two months later, on May 18, 1944, defendant filed a petition to modify the annulment decree to provide that the full care, custody and control of the child be awarded to him. The grounds alleged in the petition were that. ‘1. Plaintiff is not a fit and proper person to have control of said minor, in that since the granting of said decree she has become intoxicated at least twice a week in the presence of said minor; that she permits a certain man to come through the window of the house where she maintains said minor to visit her in her bedroom.
‘2. That plaintiff is maintaining said minor child in a residence that is not a fit and proper place of residence for the best interests and welfare of said minor in direct violation of her written separation agreement which defendant incorporates and makes a part of this Petition as if fully set out herein.’
Plaintiff answered said petition denying the allegations thereof. The matter came on for hearing on May 24, 1944, and on June 27, 1944, the trial court filed a memorandum of opinion in which it stated:
‘There is considerable testimony on the condition of the home in which defendant and the child reside; but, from all the evidence and the report of the Probation Officer, the said home is orderly, neat, clean, and well-kept.
‘The issue in a case such as this is not the condition of the home, but it is the fitness of the parents to supervise the care, custody, and control of the child, and what is for the best interest of the child. On this subject it appears that the defendant is better fitted to exercise that duty, and it appears that the best interest of the child will be served if he is awarded to the custody of defendant.’
The court made no finding that the mother was unfit, but made an order modifying the prior decree and awarding the ‘full care, custody and control’ of the child to the father, and made no provision for the mother to even see her infant. From this order the present appeal has been taken, it being contended by appellant that the trial court abused its discretion in awarding the child to the father.
Before considering the evidence let us consider certain principles of law applicable to such a case. Section 138 of the Civil Code provides that in actions for divorce the court may, during the minority of the children of a marriage, make such order for their custody, care, education, maintenance and support as may seem necessary or proper, and may at any time modify or vacate the same; that in awarding custody the court is to be guided by what appears to be for the best interests of the child in respect to its temporal and its mental and moral welfare; but that as between parents claiming custody, neither parent is entitled to it as of right, but other things being equal, if the child is of tender years, it should be given to the mother .
Section 84 of the Civil Code also provides that in an annulment proceeding the court may make such order for the custody, care, education, maintenance and support of the children of the marriage, except that it must award the custody of the children of a marriage annulled on the ground of fraud or force to the innocent parent.
It is well established that the determination as to which parent shall have the custody of a minor child is a matter resting in the sound discretion of the trial court and that its decision will not be reversed on appeal except where there is a clear abuse of such discretion. However, the discretion exercised must be a judicial discretion, and where custody has once been awarded and a change is sought, a change of circumstances must be shown, the burden of showing which is upon the moving party; and all presumptions are in favor of the reasonableness of the original decree. Prouty v. Prouty, 16 Cal.2d 190, 193, 105 P.2d 295; Foster v. Foster, 8 Cal.2d 719, 726, 727, 68 P.2d 719; Olson v. Olson, 95 Cal.App. 594, 597, 272 P. 1113; Gavel v. Gavel, 123 Cal.App. 589, 11 P.2d 654; Moon v. Moon, 62 Cal.App.2d 185, 144 P.2d 596; Washburn v. Washburn, 49 Cal.App.2d 581, 587, 122 P.2d 96; In re Inman, 32 Cal.App.2d 130, 134, 89 P.2d 421.
In Moon v. Moon, supra, the court said, 62 Cal.App.2d at pages 186, 187, 144 P.2d at page 598: ‘Undoubtedly the trial court had authority to change its order respecting the custody of Charla (Civil Code, sec. 138). Because of her tender years, ‘other things being equal’ she should be in the custody of the plaintiff, her mother. Civ.Code, sec. 138. The court having originally determined that she should be in her mother’s custody, some change in conditions or some unusual circumstance had to be shown to justify an alteration of that provision. Foster v. Foster, 1937, 8 Cal.2d 719, 726, 68 P.2d 719; Washburn v. Washburn, 1942, 49 Cal.App.2d 581, 587, 122 P.2d 96. One who seeks a modification of an existing custody order has the burden of proving that conditions have so changed that a modification is justified (Prouty v. Prouty, 1940, 16 Cal.2d 190, 193, 105 P.2d 295), and the paramount purpose of the whole proceeding is to serve the best interests of the child. Prouty v. Prouty, supra, 16 Cal.2d at page 195, 105 P.2d at page 295. The sum of the matter is that the evidentiary support for the order taking three year old Charla from her mother’s custody and placing her in that of her father, must be adequate, if the order is to stand.’
And in that case the order changing custody from mother to father was reversed. In Washburn v. Washburn, supra, less than six months after the interlocutory decree of divorce which gave to the mother custody of a boy and girl aged fifteen and nine years, respectively, the father sought a modification, alleging the mother was no longer a fit and proper person to have custody. The trial court awarded custody to the father but the order was reversed on appeal. Defendant introduced the testimony of two detectives who had shadowed plaintiff, one of whom testified that he had seen plaintiff intoxicated on a dozen occasions. These detectives also testified to a visit by plaintiff to a certain doctor’s apartment and a meeting between this doctor and plaintiff at Palm Springs. The court said, 49 Cal.App.2d at pages 586, 587, 122 P.2d at page 99: ‘So far as the evidence goes there is not one iota to indicate that the children did not have the best of care from their mother, and none to indicate that any of the acts or conduct of the mother of which the father complains was known to the children . The maternal grandmother of the children lives in the mother’s home and assists with the housework and the care of the children. The father is active in his business and employs a housekeeper to maintain his home; and so if the children were to reside in his home they would be largely under the immediate care of a housekeeper or of a governess if he employed one, as he stated he would if awarded the custody. Moreover, so far as the record discloses the home surroundings are the same now as when the interlocutory decree was signed.’ (Italics ours.)
Also it said, 49 Cal.App. at pages 587, 588, 122 P.2d at page 100:
‘In custody cases the underlying principle, paramount to all others, is the welfare and best interests of the child. In no way in conflict with this rule is another, equally well established, that once a court has decreed it there may be no change in the child’s custody except where adequate cause therefor arises out of changed conditions. This principle is based on the idea not only that the stability of the home life of the children is an important and vital factor, but also that the turmoil of litigation must somewhere end. Short of a modification based upon adequate grounds, the decree awarding custody is conclusive and settled beyond recall other than by appeal. Moreover, the acts and conduct of one of the parties to the divorce which give offense to the other, or even to the public at large, are not a matter that calls for or permits a change of custody unless such acts and conduct are shown to affect directly the welfare and best interests of the child . Where a court has decreed custody to one parent, such parent may not be deprived of the custody for any supposed unfitness unless it be shown that he or she is so unfit as to endanger the child’s welfare. A custody proceeding is not one to discipline one parent for such parent’s shortcomings as an individual, nor to reward the other for any wrong suffered therefrom. * * * Before a decree awarding custody may be vacated and the child’s life unsettled the evidence must be clear and convincing that the child’s welfare and best interests will be directly promoted by a change. Generally speaking, there may be no change in the custody provisions of a decree unless the material facts and circumstances occurring subsequently are of a kind to render it essential or expedient for the welfare of the child that there be a change. While each case must be solved on its own facts, there are, of course, elemental factors common to all cases that must not be overlooked. (Italics ours.)
‘It is not open to question, and indeed it is universally recognized, that the mother is the natural custodian of her young. This view proceeds on the well known fact that there is no satisfactory substitute for a mother’s love. So true is this that in this state the code exacts that she shall have custody of her child, everything else being equal, unless the child has reached the age which necessitates a particular education or preparation for its life work. Civ.Code, § 138.’
And the order changing custody was reversed.
Turning now to the evidence in the case which is relied upon as justifying the order of the trial court, since that court stated that the home in which Mrs. Munson was maintaining the child was orderly, neat, clean and well kept, and petitioner admitted that the child looked healthy and well, the charges in defendant’s petition that plaintiff was maintaining said child in an unfit and improper place may be said to have been disproved. In support of his charge that plaintiff had become intoxicated in the presence of the child defendant produced no testimony except his own, and while he made the general allegation that he had seen Mrs. Munson ‘under the influence of liquor’ several times, that he had ‘seen her intoxicated once or twice a week, on an average,’ he did not testify that she had been intoxicated in the presence of the child. Petitioner’s charges were denied by respondent herself and by her mother and her sister-in-law with whom respondent lives. Plaintiff stated that she did take a drink now and then, but that she was not a drunkard— that she had only been in a bar once, and that was when Mr. Munson took her on the night of his birthday, on April 8th. A neighbor who lived across the street from Mrs. Munson and saw her frequently, and another neighbor who visited in the Munson home about twice a week, both testified that they had never seen Mrs. Munson drunk. In Stafford v. Stafford, 299 Ill. 438, 132 N.E. 452, 456, 20 A.L.R. 827, the court said: ‘This court would not feel warranted in holding that a man is utterly disqualified from having the care, control, and education of his children because of the fact that he has occasionally taken a drink of intoxicating liquor. If we were to adhere to that rule it would disqualify a very large per cent. of men in this country in all of the occupations and professions in which men are engaged. Taking a drink of intoxicants in the presence of a child would be setting a bad example for it. So would smoking or chewing tobacco likewise be a bad example. It may be admitted that the occasional taking of a drink of liquor or the smoking or chewing of tobacco is not a special aid to a man or a recommendation, but we apprehend that no court would undertake to hold, as a matter of law, that either or both would absolutely disqualify a man from having the custody of his child or be considered sufficient ground for giving the custody of his child to another who has no such habit or any other bad habit.’
In this day and age that language is equally applicable to a woman.
As to the allegation that plaintiff ‘permits a certain man to come through the window of the house where she maintains said minor and to visit her in her bedroom,’ no testimony was given in support of this charge except that of petitioner himself. He testified that he once saw a man referred to as ‘Tipple’ go through the window of plaintiff’s room at 12:45 at night. This was denied by plaintiff and its probability is discredited by the testimony of plaintiff, her mother, her sister-in-law and one of the women neighbors, all of whom testified that the window was a small one five or six feet from the ground, that it was hinged at the bottom and had a chain at the top which prevented its being opened more than a little over a foot, that it was almost connected with a window opening into the adjoining room where the sister-in-law slept. It is even discredited by Munson’s own testimony that the baby’s crib was directly under the window, and his statements that in the evening before he saw ‘Tippie’ go through the window, he had been in Mrs. Munson’s home and that this man Tippie was there when he left.
Petitioner relies heavily upon a mushy love letter written by Mrs. Munson to Tippie, but never mailed, which letter Munson purloined from the Munson home, and in which she said ‘If I really thought there was any chance of your coming down, hon, I’d not only have my windows made bigger, but I’d even move out in the yard and pitch a tent, then I’d be sure you’d get in.’ Whether this letter acquired by Munson in what he stated was a search for notes or information to get the custody of the child inspired his testimony, or whether it tends to corroborate it, were, perhaps, matters for the trial court. However, objection to admission of the letter in evidence was interposed, and, we think, under the circumstances should have been sustained. While there is authority in this state that, at least in criminal cases, evidence otherwise competent is not inadmissible because secured illegally and by an invasion of the constitutional rights secured by Art. I, section 19, of our State Constitution, on the theory stated in People v. Mayen, 188 Cal. 237, 205 P. 435, 24 A.L.R. 1383, that the Constitution and laws of the land are not solicitious to aid persons charged with crime in their efforts to conceal or sequester evidence of their iniquity, and that from the necessities of the case the law countenances many devious methods of securing evidence in criminal cases, this rule has not always been applied in civil actions. In Kohn v. Superior Court, 12 Cal.App.2d 459, 55 P.2d 1186, 1188, where stolen documents were attempted to be read in evidence, the court said, in a replevin action, that if, as plaintiff claimed, the documents had been wrongfully taken, ‘then it was the duty of the court to order them returned to him with as little inspection as the issues would permit and not to aid, or become a party to, the wrongful taking in any respect whatever.’ Also see Kohn v. Crocker First National Bank, 22 Cal.App.2d 246, 248, 70 P.2d 989. But whatever may be the rule in criminal cases and in other cases where the interests of the public are involved, where, as in the case before us, purely private rights are involved, and a party to the action has himself infringed the constitutional rights of the other party and stolen a letter from her for the purpose of using it against her in a civil action, the principle set forth in section 3517 of our Civil Code, that ‘No one can take advantage of his own wrong,’ becomes applicable; and we are of the opinion that the trial court in a proceeding such as this should not have permitted petitioner to take advantage of his wrong in purloining the letter, and should have refused to become a party to its use.
Petitioner also relies upon the testimony of four witnesses called by him, who were asked their opinions as to whether he, Munson, was a fit and proper person to have custody of the child. A typical question and answer were: ‘Q. In your opinion is he [Munson] a fit and proper person to have the custody of his own son? A. I would say he would be, as far as I know.’ Such opinion evidence is entitled to no consideration whatever. Under section 1870, Code of Civil Procedure, opinion evidence may be given only on matters covered by subdivision 9 thereof; and except in the instances therein provided a witness must testify to facts and not opinions. Moore v. Norwood, 41 Cal.App.2d 359, 366, 106 P.2d 939. Opinion evidence as to the fitness of a parent to have custody of a child is inadmissible. Milner v. Gatlin, 143 Ga. 816, 85 S.E. 1045, L.R.A.1916B, 977; Moore v. Dozier, 128 Ga. 90, 57 S.E. 110, 112; Churchill v. Jackson, 132 Ga. 666, 64 S.E. 691, 692, 49 L.R.A., N.S., 875, Ann.Cas.1913E, 1203; State v. Giroux, 19 Mont. 149, 47 P. 798, 803; Long v. Smith, Tex.Civ.App., 162 S.W. 25, 28, 29.
Petitioner testified that he was boarding with a Mr. and Mrs. Granberg, and, if awarded the custody of the child, intended to take it to their home to be cared for by Mrs. Granberg. This would mean, in effect, that the physical care and custody of this infant would be entrusted to a stranger. But it has been held in numerous cases that this cannot be done unless the natural parents of a child are found to be unfit to have such custody. This principle was restated in the very recent case of Roche v. Roche, 25 Cal.2d 141, 152 P.2d 999, 1000, where joint control of a girl eight years of age was awarded to the parents, but the physical care and control were awarded to the child’s paternal grandparents. The Supreme Court quoted from Stever v. Stever, 6 Cal.2d 166, 170, 56 P.2d 1229, to the effect that ‘before the court can deprive the mother of her right to the minor’s custody and give her into the charge of strangers, there must be a finding that the mother is an unfit person to have the custody of her child.’ Other cases so holding were cited, 25 Cal.2d at pages 143, 144, 152 P.2d 1000. In re Mathews Estate, 169 Cal. 26, 145 P. 503, there cited, the court made a finding that the father of the minor was dead, and that the mother was ‘an unfit, incompetent, and improper person to have the care, custody, or control’ of said child. On appeal an order appointing a stranger as guardian was reversed, the court saying that the evidence relied upon as warranting a finding of incompetency ‘is pitifully weak, and entirely insufficient in our judgment to warrant a conclusion that the mother is incompetent to act as guardian and should be deprived of the custody of her child.’
In Estate of Lindner, 13 Cal.App. 208, 109 P. 101, 102, in a guardianship proceeding, the court found that the mother of the minor child, a girl aged less than three years, was not a fit and proper person to have the custody of her child. The court said that the prior rights of parents to the custody of their children under fourteen years of age cannot be disregarded except on the most compelling reasons proven and sustained; that ‘as against everyone except the father the mother is by the law of God and man entitled as of right to the custody of her own child, and of this right she cannot be deprived except upon a clear showing of her unfitness for the exercise of such right.’ Also that ‘a mother who is both capable and anxious to rear her own offspring should not be deprived of the opportunity to thus discharge the duty she owes to the child, without a clear showing of unfitness for the trust.’ And the judgment and order were reversed. Also see Wand v. Wand, 14 Cal. 512, 517.
As hereinbefore stated, the order in this case awards the full custody of the child to the father, and contains no provision for the mother to even see her offspring. There is certainly nothing in this case that justifies any such deprivation. In Allison v. Bryan, 26 Okl. 520, 109 P. 934, 939, 30 L.R.A., N.S., 146, 138 Am.St.Rep. 988, plaintiff, the mother of an illegitimate child which had been legitimized by its father and was in his custody, had been deprived by the latter of any right to see her child. She applied for and was granted an order which provided that the child should be permitted to be with her at certain times and places. On appeal the court quoted from Haley v. Haley, 44 Ark. 429, as follows: ‘The privilege of visiting accorded to the mother is a plain dictate of humanity, in the absence of any reason to suppose that the privilege would be abused to the injury of the boy. There was none in this case. The charges of immorality against the mother were not sustained. She is shown to be an industrious, hard-working woman, and a good woman, by all the witnesses, except the defendant. But had it been otherwise the permission to visit would not be necessarily erroneous. The courts should regard the maternal instinct in the veriest trull that walks the streets, taking proper care that it do not lead to the corruption of the offspring. It is the strongest and holiest sentiment of humanity; the freest from selfishness or impurity, and often the last hope of redemption for fallen natures .’ (Italics ours.)
After reviewing other cases dealing with the right of visitation, the court said: ‘From the foregoing it will be seen that under practically every and all conditions the parent, in some instances the father and in others the mother, while losing the right of custody of their children, have in every instance received at the hands of the court recognition of their right of visitation. * * * the underlying reason for the rule was in each instance that the one accorded the right was a parent, and that it was in accord with humanity and right living and the best interests of the child that it should not forget and be estranged.’
In Copeland v. Copeland, 58 Okl. 327, 159 P. 1122, 1124, L.R.A.1917B, 287, the court said: ‘The child was the legitimate offspring of a lawful marriage between the parties and was of tender years, and, though the mother may have erred, her sin did not dry up the wellsprings of mother love and forfeit all right upon her part to visit with and enjoy the association of her own offspring. Neither does the law so declare, but recognizes this right, so long as the welfare of the child will not be endangered thereby.’
It also cited and quoted from Allison v. Bryan, supra, and from Haley v. Haley, supra, which was quoted therein.
We think petitioner failed to furnish evidence which justified the change of custody made by the order of the trial court. As hereinbefore stated, he agreed in a writing dated March 15, 1944, that the custody of the child should be awarded to the mother; and while such agreements are not binding upon the courts, nevertheless, as was said in Black v. Black, 149 Cal. 224, 226, 86 P. 505, courts do generally approve and adopt them, because parents, solicitous for the welfare of their offspring, have the greatest interest in determining which of them can best care and provide for them. And in Sargent v. Sargent, 106 Cal. 541, 546, 39 P. 931, 932, it was said that ‘Parents have a right to contract with each other as to the custody and control of their offspring, and to stipulate away their respective parental rights, and such contracts are binding upon them.’
Petitioner had lived with respondent from the date of their marriage, November 6, 1941, until its dissolution on March 31, 1944, part of the time in the home she now shares with her mother. He must have known when he made his agreement whether Mrs. Munson was a fit and proper mother, and his agreement indicates that he so believed. Even giving his testimony the fullest scope, we think it was inadequate to show that in the space of some seven weeks conditions had so changed and Mrs. Munson had become a person of such dissolute character that she should be deprived of the custody and care of her infant child and same be in effect awarded to a stranger. Petitioner has been free to visit with the baby, and has visited him five or six times a week. While Mrs. Munson is employed in the diet kitchen of a hospital her hours are from 8 a.m. to 1 p.m., and from 4 to 7 p.m., and during the absence from her home the child is well cared for by her sister-in-law who has a child of her own about the same age.
Also the record contains evidence tending to show that petitioner himself is not above reproach and that his character is not of the best; but it is unnecessary to recite same. We are satisfied for the reasons above stated that other things were not unequal in this case and that this child of tender years should be in the custody of its mother; and we cannot agree that upon the showing made it is for the best interests of this infant to be deprived of its mother’s care and affection. We might add that though the Civil Code does not define the degree of fraud which under section 82 thereof will justify the annulment of a marriage, it might well be said that where, as here, plaintiff was constrained to secure the annulment of her marriage because, though the fact was unknown to her, Munson married her when he had another wife living from whom he was not divorced, that his conduct constituted such a fraud upon respondent as required the court, under section 84, supra, to award the custody of the child to her.
The order is reversed.
PEEK, J., concurs.
THOMPSON, Justice.
I dissent. The record contains sufficient evidence to support the order awarding the minor child to his father. The majority opinion appears to invade the exclusive province of the trial judge by disregarding proof and the inferences to be drawn therefrom and by discrediting witnesses.
In an application for custody of minor children the trial judge has a ‘very broad discretion’ in determining what is for the best interests of the temporal, mental and moral welfare of the child, and in deciding which parent is best qualified to assume the custody. Prouty v. Prouty, 16 Cal.2d 190, 105 P.2d 295; Civil Code, sec. 138. In Lefebvre v. Lefebvre, 48 Cal.App. 483, 192 P. 76, 77, it is appropriately said: ‘If we find substantial evidence in the record to support a rational inference that the order is for the best interests of the child, * * * it would be an excess of our authority to disturb the determination of the trial court.’
The respondent testified that, after the decree of annulment had been rendered, he saw the appellant ‘intoxicated once or twice a week’; that as a result of undue punishment of the child with a wooden paddle, ‘I have seen five black and blue marks across his body,’ and that he saw a man called ‘Tipple’ climb through a window into the bedroom where the appellant and the child slept, at 12:45 on the night of April 25th. If those statements are accepted as true, and the trial judge evidently believed them, they furnish ample evidence warranting the court in finding that it is for the best interests of the child, who is now over three years of age, to award its custody to the father. The father’s testimony requires no corroboration if the court believed it to be true.
The majority opinion appears to pass upon the weight of evidence and the credibility of witnesses. It asserts with respect to the evidence of intoxication that, ‘Defendant produced no testimony except his own’ on that subject. Regarding the charge of immoral conduct inferred by the statement that respondent saw Tippie climb through the bedroom window, the opinion inadvertently asserts that ‘No testimony was given in support of this charge except that of petitioner himself.’ The law requires no corroboration of the respondent’s positive statements, but I am satisfied there is substantial corroboration of both statements. The appellant testified that she did drink intoxicating liquor. She admitted that the drank four whisky cocktails one evening on her way from work, and that she did not arrive at her home until ten o’clock that night. She left her child in the care of her sister-in-law. She said she did not become drunk, if that meant that she ‘passed out’ from the effect of the liquor. In a letter which she wrote to the man Tippie she admitted stopping at a friend’s house ‘for just one shot and it didn’t end at that. I did feel pretty high for a while, but don’t think I’ll feel so good tomorrow .’ Regarding the bedroom window episode, she said in that letter, ‘If I really thought there was any chance of you coming down, hon, I’d not only have my window made bigger, but I’d move out in the yard and pitch a tent, then I’d be sure you’d get in.’ (Italics added.)
Several witnesses testified that they believed Mr. Munson was a fit and suitable person to take custody of his minor son. It appears that he was employed as foreman for the Arcata Redwood Lumber Company, and for eight years previously he had worked for the Hammond Lumber Company in Humboldt County. The majority opinion discredits the testimony of those witnesses as mere opinions and incompetent. But in each instance, with one exception, their evidence was received without objection. I think that testimony is competent, although it is not of great importance.
The trial judge did not find that the appellant was unfit to have custody of her child; neither did he find that she was fit or suitable. That omission is immaterial. He did find that it is for the best interests of the child to award its custody to the father. The very fact that the same judge who tried the annulment proceeding saw fit to change the custody from the mother to the father is very persuasive of the fact that he was convinced it was for the best interests of the child to do so. The majority opinion suggests that the trial judge declared in his memorandum opinion filed before judgment that appellant’s home was a suitable place for the child. That opinion is not a finding that the mother was fit. It only stated ‘Said home is orderly, neat, clean, and well-kept.’ That merely refers to the condition in the house, and not to the character or fitness of the mother. It is not in conflict with the finding adopted or the order awarding custody.
It is true that the opinion of a trial judge may now be included in the record on appeal. Rule 5(a), Rules on Appeal. But it may not be considered to overcome, modify or change findings which have been adopted. Lord v. Katz, 54 Cal.App.2d 363, 367, 128 P.2d 907; Nestor v. Burr, 124 Cal.App. 369, 12 P.2d 479; Blackwell v. Ferrari, 60 Cal.App.2d 13, 18, 139 P.2d 997; 2 Cal.Jur. 688, sec. 394; 5 C.J.S., Appeal and Error, § 1641. In the case of Phillips v. Hooper, 43 Cal.App.2d 467, 111 P.2d 22, 23, it is appropriately said: ‘No antecedent expressions of the judge can in any way restrict his absolute power to declare his final conclusion, in the only manner authorized by law, to wit, by filing his ‘decision’ (findings of fact and conclusions of law), provided in sections 632 and 633 of the Code of Civil Procedure.’ (Citing authorities.)
The trial court did not abuse its discretion in modifying the original decree by changing the custody of the child from the mother to the father for conditions which arose after the decree was rendered. It is true that a change of custody may not be based alone on evidence of conditions which did appear in the original trial, or which existed when the decree was rendered. In the case of Washburn v. Washburn, 49 Cal.App.2d 581, 122 P.2d 96, which is cited in the majority opinion and relied upon, a similar order awarding custody of a child was reversed. But it was reversed for the reason that there was no evidence adduced at the hearing of conditions which did not exist at the time of the original trial. In the present case evidence was produced of conditions existing after the rendering of the annulment decree which are inimical to the welfare of the child.
The award of custody of the child was originally made pursuant to a written agreement of the parties. But that agreement is not controlling. Courts are not bound by agreements of the parents respecting the custody of their children in either divorce or annulment proceedings. Puckett v. Puckett, 21 Cal.2d 833, 839, 136 P.2d 1; Van Der Vliet v. Van Der Vliet, 200 Cal. 721, 254 P. 945; Black v. Black, 149 Cal. 224, 86 P. 505; Anderson v. Anderson, 56 Cal.App. 87, 204 P. 426; 9 Cal.Jur. 793, sec. 136; 27 C.J.S., Divorce, § 311; 35 Am.Jur. 228, sec. 73; Civil Code, sec. 84.
The majority opinion suggests, in support of the reversal of the order, that respondent’s ‘character is not of the best.’ That seems to me to be an invasion of the exclusive province of the trial judge. That is an important question upon which the trial judge must have determined that it is for the best interests of the child to award its custody to him. To suggest that the father was not fit to have the custody depends upon the impeachment of his credibility, and of the witnesses who supported him in that regard. Clearly a reviewing court may not discredit witnesses whose evidence has been accepted by the trial court.
The crux of this appeal appears to depend on how far a reviewing court may go in weighing evidence and discrediting witnesses, to reverse the judgment of a trial court for abuse of discretion in awarding the custody of minor children. No class of cases is so dependent on a careful analysis of the evidence and determination of the credibility of witnesses, as divorce cases and proceedings for the award of custody of children. In such cases the rule that trial judges, who hear the evidence and observe the witnesses in the atmosphere of the trial, are best qualified to pass upon the issues, is peculiarly applicable. The judgment of reviewing courts should not be substituted for that of the trial judge, upon the merits of a cause, except for a total lack or disregard of evidence adduced, or for a very clear and apparent abuse of discretion. It is true that ‘other things being equal,’ Civil Code, sec. 138, the mother of a child of tender years is entitled to its custody. The child which is involved on this appeal was only twenty months old at the time of the hearing. He is now over three years of age. Common knowledge warrants the court in assuming that a child three years of age is often very impressionable. Evidently the trial judge concluded that ‘other things’ were not equal, and in his discretion he found that it would be for the best interests of the child to award it to the father. There is an abundance of evidence to support that finding.
I am of the opinion the order should be affirmed.
Rehearing denied; THOMPSON, J., dissenting.