Ruthruff v. Ruthruff

GIVENS, J. — Appellant and respondent were divorced March 20, 1928, and by mutual agreement settled their property rights and the custody of their minor son, then about four and one-half years old, the appellant having him nine months and respondent three months of each year, the decree based solely on the agreement so providing. September 1, 1931, respondent applied for a modification of the decree, seeking the sole custody and care of the child, which the court granted. The court made no findings as such, but by way of recital declared in the decree that it appeared to the court “that it is to the best interests of said minor child of the parties, William Edgar Ruthruff, that said decree of this court be modified as hereinafter provided,” thereafter *332 ordering that the child instead of being nine months with the mother and three with the father, be in the sole custody of the father, giving the mother the right of visitation. Since no objection is raised as to the absence of more specific findings, they are waived (Kirkpatrick v. Kirkpatrick, ante, p. 27, 10 Pac. (2d) 1057), and a judgment will not be reversed for want of a finding unless it appears that there was evidence before the court from which it was .required to make a finding contrary to its other findings or its judgment. (Storey & Fawcett v. Nampa Irr. Dist., 32 Ida. 713, at 719, 720, 187 Pac. 946.) The best interests of the child in such proceedings are of paramount importance, though to modify an award of a child of tender years to the mother, it must appear that conditions have changed and that the mother is unfit to longer have the custody of the child. (Kirkpatrick v. Kirkpatrick, supra.) This does not necessarily mean morally unfit, as there are many elements of unfitness which may be considered. There is not only a conflict in the evidence, but different conclusions could reasonably be drawn therefrom and divergent plausible arguments based thereon, but from a careful examination of the testimony pro and con, we are satisfied there is sufficient evidence to sustain the modification, and the judgment is therefore affirmed. No costs allowed. Lee, C. J., concurs. Yarian, J., dissents.