109 Wash. 112 | Wash. | 1919
The appellant, some time prior to December 21, 1917, brought suit for divorce in the county court of Teller county, Colorado, from his wife, Lena B. Groves, who appeared in that action and filed an answer and cross-complaint. After a hearing or hearings had been had, the defendant therein appeared
After the child had been in this state about a year, ánd after the modification of the decree of the Colorado court, as above mentioned, the appellant, armed with such modified decree, came to Washington, personally called upon Mrs. Barto, and demanded possession of the child. The demand being refused, he made application to the trial court for a writ of habeas corpus to secure such possession. Mrs. Barto made answer and return to .the writ, and the child’s mother, Lena B. Groves (now Lena B. Ridge) appeared, was made a party and defended, without objection. From a decree awarding the child to the mother, this appeal is prosecuted.
It is contended here that, under the rules of comity existing between the courts of the several states, and
So here, while appellant claims that the original decree was entered in his absence, and contrary to an understanding that the wife should have a divorce while he should be given the custody of the child (which understanding is denied), yet he had knowledge of the decree before the child and its mother had left the jurisdiction of the court, and if he or the court had been imposed upon, it would seem that it was then his duty to ask that the decree be modified; yet he did nothing looking towards such a modification, permitted and assisted in the child’s removal from Colorado and acquiesced for nearly a year, and when he made his application for modification, the in
In any event, a change of conditions is set up in Mrs. Barto’s return to the writ which was sufficient to justify the trial court in hearing the case on its merits. Going, then, to the merits, we find no little difficulty in determining what are the facts. Everything testified to on the one side is squarely denied upon the other. Appellant attempted to show that both the mother and Mrs. Barto are unfit to have the child. As to the latter, the testimony is not sufficient to warrant any attention, while as to the former, the evidence is confined almost wholly to matters which occurred and were within the knowledge of appellant at and before the time the original decree was entered, and should-have been proven, if susceptible of proof, while the Colorado court had jurisdiction of the person of the defendant in that action. The original Colorado decree being silent on all such matters, we are not now disposed to inquire into the conduct of the mother before the entry of that decree. It does appear that the mother has remarried since coming to Washington, has now a fit and comfortable home for the child and is financially -able to provide for her wants; and the trial court, who heard and saw the witnesses, was of the opinion that, considering the tender age of the child, now about five years old, its welfare would be best subserved by awarding it to the mother for the time being, and that, if the mother’s home and influence should later prove to be what the father feared,
Finding no error, the judgment is affirmed.
Holcomb, C. J., Bridges, Mount, and Fullerton, JJ., concur.