Appellant seeks to reverse a decree of the lower court as to the custody of his ten year old son.
On December 26, 1939, appellant signed an agreement by which it was provided that appellant waived service of summons in a divorce suit, not then filed by appellee, that such suit might be “heard at any time, either in term time or vacation,” and “plaintiff to havе custody of child. ’ ’ The complaint in the divorce suit was filed on December 30,1939, and on the samе day a decree was rendered by the court in vacation under which divorce was granted to appellee and she was given “the permanent care and custody” of the minor son of the parties.
On January 27,1943, on the petition of appellant, the court modified thе decree as to the custody of the child so as to permit appellant to havе the child for one month during vacation each year and for two other weeks, and on alternate Christmas holidays, and at such time on week ends as would not interfere with the school work of the boy.
Appellant on January 20, 1944, filed petition for modification of the second оrder as to the custody of the child. In this petition appellant alleged that his son was being fоrced to walk four miles to school in all kinds of weather, that the school bus passed appellant’s door each day, taking children to and from school, and that appellee was trying to poison the mind of his boy against him; and he prayed that he be granted the custody оf the boy for the remainder of the school year and that appellee be admоnished not to alienate the affections. of the child from appellant. This petition wаs denied.
Another petition for a change in the order as to custody of the child was filed by appellant on June 13, 1944. In this petition appellant again alleged the difficulty of the child attending school from appellee’s home, and asked that he be given custody of the boy during the school year, with appellee having him during vacation. The court, on hearing of thе last petition of appellant, ordered that appellee be given the custоdy of the child beginning August 14, 1944, with the right on part of appellant to have the boy visit him every two weeks frоm six o’clock p. m. Friday until six o’clock p. m. on the following Sunday. This appeal followed.
No witnesses testified at the hearing except appellant, appellee and their little son. While it appeared that on some occasions the boy had to walk sevеral miles to school, it was not shown that he was required to do this all the time or that this walking to schоol was injurious to his health. There was in the testimony no support of appellant’s contеntion that appellee had been poisoning the mind of the child against appellаnt.
The record before us shows that, in order to facilitate the granting of divorce, appellant not only signed a waiver of service of summons and an agreement that the causе might be tried in vacation, but he agreed that appellee should have custody of the bоy, with a stipulated remuneration from appellant for his support. As a matter of fact, appellant signed this agreement four days before appellee’s complaint was filed; and on the same day that this complaint was filed the divorce decree was rendered. Such is the celerity with which, under our complacent law, the most sacred of all cоntracts are dissolved, and little children, innocent of any wrong, are condemned to the trаgedy of a broken home. The haste for this divorce (both parties have taken new spоuses) was apparently such that appellant was then willing to forego any claim to thе custody of his child. Of course this agreement, like any other agreement as to the custody of a child, was not binding, but it is of some importance as tending to show attitude at the time the original divоrce suit was filed.
All parties to this unfortunate litigation were in person before the lower court, which thus had an opportunity—denied to us—to appraise the situation from the apрearance, manner and demeanor of all concerned, as well as from the testimony. Under our long established rule a decree of the chancery court will not be reversed unless it appears that same is against the preponderance of the testimоny. Benton v. Southern Engine & Boiler Works,