Heston v. Odlin

Bridges, J. The parties hereto were husband and wife prior to May 21,1920. On that date the superior court of Pierce county gave the respondent (plaintiff there) a divorce. The decree gave to her the care and custody of their son, a child now past six years of age. It further provided that the appellant (defendant there) should have “the right and privilege of visiting [478] said minor child at any and all reasonable times.” The appellant was further required to make monthly payments to the respondent of $75 for her own maintenance, and an additional $75 for the maintenance and care of the child. These payments have been seasonably made. Subsequently to the divorce, respondent re-married and now lives with her husband at Anacortes, while the appellant resides at Eoslyn. In September, 1922, he petitioned the court which granted the divorce for a modification of the decree so that it would relieve him from paying any further sums to the respondent for her own maintenance, and would provide for $25 per month for the maintenance of the minor child instead of $75 per month, as in the original decree. He also asked that the court make such modification of the original decree as that he would be permitted to have the custody of the child for such definite periods as the court might determine. After a hearing, the trial court refused to modify the decree in any respect except to relieve appellant from the payment of any further sums for the maintenance of the respondent. It found that since the divorce respondent had permitted the child to visit appellant at various times, although she was not required by the decree so to do, and said: “I do think, however, that the father should, as he has in the past, have the child occasionally. I think the court will leave the decree in that respect just as it is.” It will not be necessary here to recite any more of the details of the testimony. We think the trial court was right in modifying the decree so as to relieve appellant from any further payments to respondent for her maintenance, and was also right in refusing to modify it with reference to the amount to be paid by appellant for the maintenance of his child. But, under all of the circumstances, we are of the opinion that [479] the court should have modified the decree so as to have given the appellant the right to have the child visit him during certain definite periods and until the further order of the court. The mother is remarried and testified that she did not wish the appellant to visit the child at her home. In this conclusion she is doubtless wise. We think the appellant is entitled to have the child with him for not less than six weeks during each summer school vacation. We also think the respondent should be permitted to determine the exact time during such vacations when the child shall visit the appellant. The judgment is reversed, and the cause remanded for the trial court to make an additional modification to the original decree of divorce so that it will require respondent annually, until the further order of the court, during the summer school vacation, upon the request of the appellant, to permit the minor child to visit the appellant for a period of not less than six weeks, the respondent to fix the particular period or periods constituting such six weeks during each summer vacation. The appellant will be required to pay the costs of this appeal. Main, C. J., Mackintosh, Holcomb, and Mitchell, JJ., concur.