42 Ind. App. 361 | Ind. Ct. App. | 1908
-In the Henry Circuit Court, on-May 24, 1905, appellant and appellee were divorced, and the custody of their infant daughter was given to appellant, the mother, with the right of visitation, under certain limitations, in appellee, the father. On November 28, 1905, appellee filed his petition praying for a modification of such order so as. to give the custody of said child to him, averring that he had a good and suitable home for said child, and that appellant had no such home, but made her home with her mother and stepfather; that the moral surroundings of the home of appellant were bad, that said child was being taught to hate and despise appellee; that appellant and members of the family were in the habit of cursing and swearing, and using vulgar, profane and vile language in the presence of said child; that said child was kept in an unclean and filthy condition; that the moral character of appellant was bad, and stating specific acts of immorality committed since the original decree. Upon this petition trial was had, a large number of witnesses examined and the testimony presented to the court, all of which was oral, and a great deal of which was directly conflicting. On December 30, the court rendered its decision, modifying its decree as to the custody of said child, and awarding said child to David Keesling, the father of appellee and grandfather of said child, charging him with the maintenance, education and care of said child, and granting to said appellant the right of visitation under certain limitations. Prom this order of the court appellant takes her appeal.
It was charged in the petition that the child was kept in an unclean condition, and that its surroundings were bad. The appearance of the people who had the care of the child might prove to the court this allegation beyond question, ■without a word of oral testimony. We therefore, under the rules of the eases cited, will not weigh the evidence. We have examined the record, and find, that there was sufficient testimony introduced by appellee, if true or believed by the court, to show that the surroundings of the child, while in its mother’s custody, were not such as would be conducive to its best interests.
The examination made by the court of the witnesses clearly shows that the fitness and ability of the grandparents to care for the child weré inquired into. Appellant made no effort to show that said grandparents were not in every way qualified properly to rear the child, and there has not been a word of testimony pointed out to us that would indicate that the award of the court was not for the best interests of the child. In this state of the record, we would not be war-_ ranted in reversing the action of the lower court. The judge ■hearing the cause, with all the parties before him, had a far better opportunity of knowing what was best for the child than we have, when our judgment must be controlled by the inanimate record.
Judgment a£Srmed;