65 Wash. 535 | Wash. | 1911
— This is an appeal from an order denying a petition to modify a decree of divorce.
On December 2, 1909, the decree was rendered in favor of the appellant, Freda Dyer, now Freda McKee, against her then husband, the respondent, S. S. Dyer, in the superior court for Pierce county, by Honorable M. L. Clifford', one oof the judges of that court. Of the three children, the care and custody of the two boys, John, aged seven years, and Charley, aged twenty months, was ¿warded- to the appellant, to continue so long as she should conduct herself as a mother towards them in their support, example and training, and until the further order of the court, and so long as she can
On March 12, 1910, upon application of appellant, the court modified.the decree by an order limiting the right of the father as to visiting the two boys and taking them out, to Tuesdays, Fridays and Sundays, unless otherwise agreed upon between the parties, and not later on such days than fifteen minutes to nine o’clock p. m.
On July 22, 1910, the appellant again applied to the court for a modification of the decree so as to give her the custody of the daughter Loretta, but this application was abandoned by agreement of the parties. From then until September 20, 1910, when the appellant intermarried with one Fred McKee, it seems that, by mutual agreement, the child Loretta lived with appellant, the respondent agreeing to contribute $25 per month for her support and board. On the appellant’s marriage, the respondent again placed the child in the Academy of Visitation, where she remained until October 29, 1910, when, on application of respondent, the court made an order modifying the decree so as to permit him to take the child Loretta, freed from the restrictions in the original decree, and maintain her in a home established for her and himself in Tacoma, where he should have her care and custody, subject
On January 12, 1910, appellant again applied to the court, Honorable C. M. Easterday, another judge, presiding, for a modification of the decree so as to award the care and custody of all three of the children to her, and' to require the respondent to contribute to their maintenance and support. The application was contested, and on April 8, 1911, the court entered an order denying it. From that order, this appeal was prosecuted.
The appellant first assigns as error the entry of the order of October 29, 1910, permitting the respondent to take the child Loretta from the Academy of Visitation. This assignment is finally disposed of by the fact that the order was entered some six months before the appeal was taken. It was an appealable order, and was not appealed from within the period prescribed by statute.
The second and third assignments of error are based upon the court’s refusal, by the order of April 8, 1911, to award the custody of the child Loretta to the appellant, and the refusal to require respondent to contribute to the support of the other two children ' remaining in custody of appellant. The application- for modification of the decree was necessarily addressed to the sound discretion of the trial court, to be exercised according to the weight of the evidence and with a paramount regard to the best interests of the children. This is the rule governing in respect to these matters in the provisions of an original decree of divorce under the statute, as construed by this court. These matters, from their very nature, invoke the equitable powers of the court, and the jurisdiction is a continuing one “so long as there is a minor child whose maintenance and' welfare are provided for in the decree.” Poland v. Poland, 63 Wash. 597, 116 Pac. 2; Fickett v. Fickett, 39 Wash. 38, 80 Pac. 1134; Rem. & Bal. Code, § 989.
Finally, it is objected that the court failed to make specific findings of fact. No formal findings were necessary. Moreover, the appellant is in no position to urge the obj ection now made. The record fails to show that any findings were requested, or any objection made or exception taken to the court’s failure to make findings.
The order is affirmed.
Dunbar, C. J., Crow, Morris, and Chadwick, JJ., concur.