Pemberton v. Pemberton

406 S.W.2d 726 | Ky. Ct. App. | 1966

WADDILL, Commissioner.

Appellee, Glenn Pemberton, was granted a divorce from appellant, Bona Lee Pem-berton, on the ground that she had been guilty of lewd and lascivious conduct which proved her to be unchaste. KRS 403.020 (4) (c). The custody of their three-year-old son was awarded to his father and his mother was permitted to have him visit with her one week of each month. The mother has appealed contending that she is entitled to the exclusive custody of her son.

The welfare of the child, and not the wishes of the parents, is the chief concern of the courts. McLemore v. McLemore, Ky., 346 S.W.2d 722, 92 A.L.R.2d 691. The trial judge, upon sufficient evidence of her misconduct, found that appellant had forfeited her right to have custody of the child. Appellant’s argument to the contrary is unavailing in face of her moral indiscretions which she frankly concedes. Out of an abundance of caution we look to her contention that appellee is not fit to have custody. This argument is based on testimony to the effect that he is a very inefficient housekeeper. While this may be a matter to be considered, it is not of itself a sufficient ground to establish that a person is not suitable to have a child’s custody. In the instant case the totality of the evidence tends to show appellee’s fitness as implicitly found by the trial judge.

Appellant’s argument that appellee’s parents are not proper persons to rear the child is not before us since they were not given his custody.

The judgment is affirmed.