This is an appeal from an order of the Superior Court of Maricopa County changing custody of minor children from appellant to appellee. We have assumed jurisdiction pursuant to 17A A.R.S. Supreme Court Rules, rule 47(e)(5).
The parties in this case were divorced on August 18, 1971. The decree of divorce incorporated a previously arranged property settlement agreement and granted appellant, Virginia Ruth Black, custody of the parties' two minor children, Glen, age eight, and Gregory, age six, subject to appellee Jerry L. Black’s reasonable visitation rights as set forth in the property settlement agreement. Appellee was ordered to pay $100 per month per child to appellant as child support until February l,” 1972, when payments were to increase to $125 per month per child.
On December 10, 1973, appellee filed a petition to modify the original divorce decree asking the court to grant him custody of both Glen and Gregory. Appellant filed a petition on the same day requesting that appellee be held in contempt of court for violating the visitation privileges set forth in the original divorce decree, that appellee’s future visitation rights be reduced, that the child support payments be increased and that certain of appellant’s attorneys’ fees be paid. The two petitions were consolidated for hearing. After a hearing the trial court issued a minute entry on January 18, 1974, granting appellee’s modification petition and denied appellant’s petition. Appellant’s petition for a rehearing was denied by the trial court on February 7, 1974. On May 15, 1974, the trial court filed its findings of fact and conclusions of law along with a written judgment in accordance with its minute entry of January 18, 1974. Appellant filed a timely appeal.
Appellant has raised two issues on appeal.
1. Did the trial court err when it modified the original divorce decree and ordered a transfer of child custody from the appellant to appellee?
2. Did the trial court abuse its discretion in denying appellant’s motion for rehearing?
• A trial court retains continuing jurisdiction to modify a divorce decree with respect to the custody of minor children. A.R.S. § 25-331;
Davis v. Davis,
We believe that the changes in circumstances in this case were sufficient to materially affect the welfare of the children. Having found this condition precedent, the trial court was then authorized to consider whether a change in custody would be in the children’s best interests.
As we have previously stated, a change in custody will only be ordered when it will be in the best interests of the child. A.R.S. § 25-332; Andro v. Andro, supra. Since the trial judge is in the best position to determine the issues, he is given wide discretion in deciding what will be in the best interests of the child. Andro v. Andro, supra; Galbraith v. Galbraith, supra. As set forth in A.R.S. § 25-332(A), the trial court “may consider all relevant factors” when ascertaining the best interests of the child. While the factors that establish a change of circumstances materially affecting a child’s welfare are not always completely dispositive of the question of what will be in the child’s best interests, they are highly relevant. In this case the factors which constituted a change of circumstance had a direct bearing upon what court action would be in the best interests of the children. When these circumstances were considered together with the testimony by independent witnesses that the children had expressed a desire to live with their father, we believe the trial court acted within its discretion in transferring custody to appellee.
Appellant argues, without contradiction by the appellee, that the trial court conducted an off-the-record interview with the Black children. This was done without a stipulation by the parties. The basis for this argument is found in the trial court’s finding of fact No. 13 which states:
“Both children have expressed the opinion to the Court that they do not want to continue living with their mother, but want to live with their father and only visit their mother.” (Emphasis supplied.)
It is appellant’s contention that this finding of fact cannot be based upon such an interview and that the judgment cannot be supported absent such finding. Although we find no record of an interview and agree that it should only have been conducted pursuant to a stipulation between the parties, we believe that such error was harmless in this instance. We are not here faced with a waiver of objection to an interview as in
Bailey v. Bailey,
Appellant contends that the trial court erred in denying her motion for rehearing. Appellant’s only contention on appeal is that the trial court should have granted a rehearing based upon “newly dis
The only “newly discovered” evidence which appellant cites in support of her motion is that Glen first stopped at his paternal grandmother’s home and was then transported by car to his father’s residence on the day that he ran away. We do not believe that this qualifies as “newly discovered.” At the trial court hearing appellant was asked by her own attorney:
Question: “And subsequently on Wednesday, the next day, did Glen come home from school?”
Answer: “No, went to his Grandma’s.” It is obvious from appellant’s response that she was aware of the circumstances surrounding Glen’s run-away at the time of the original hearing. In order to grant a motion on the grounds of “newly discovered” evidence, it must appear to the trial court that such evidence would probably change the result upon rehearing and that it could not have been discovered before the trial by the exercise of due diligence.
Sabin v. Rauch,
The judgment is affirmed.
