Rehearing Denied March 11, 1952.
Lewis, Roca & Scoville, of Phoenix, for appellant.
Church & Farone, of Phoenix, for
Phelps, Justice. Udall, C. J., and Stanford, De Concini and La Prade, JJ., concurring.
[73 Ariz. 272] This is an appeal from an order of the superior court of Maricopa County changing custody of minor children from appellant to appellee.
The facts are that on November 24, 1948, a decree of divorce was entered in the superior court of Maricopa County on the cross-complaint of Thelma J. Cone against William K. Cone dissolving the [73 Ariz. 273] bonds of matrimony between said parties, settling their community property rights and awarding the custody of the three minor children of the parties to the mother, Thelma J. Cone. The property settlement and the awarding of custody of the children to the mother was in conformity with a written stipulation entered into between the parties on November 15, 1948, and presumably based thereon.
On December 18, 1948, Thelma J. Cone married Harold Whitney and on that date upon her request a second stipulation was entered into between her and William K. Cone providing for a modification of the divorce decree in which it was agreed that the permanent care, custody and control of James Robert Cone and Lois Virginia Cone was given to the father William K. Cone. The stipulation further made provision for a reduction in the amount of support money required under the decree to be paid to the mother for the support of the children, and on December 20 the decree was modified accordingly.
On May 31, 1949, a decree of divorce was entered in the superior court of Maricopa County dissolving the bonds of matrimony between Thelma Cone and Harold Whitney and on the following June 27, Thelma Cone married Maurice Righetti in the state of Nevada. Thereafter and on the following July 30 at the request of Thelma Cone a further stipulation was entered into between her and William K. Cone in which it was stipulated that the father should have the permanent care, custody and control of Nancy Elizabeth Cone who was then approximately one and a half years of age, and for further reduction in the support money provided to be paid under the terms of the original decree.
On August 1, 1949, pursuant to said stipulation the original decree of divorce was further modified to read as follows: "That plaintiff (appellant) be and he is hereby awarded the permanent care, custody and control of James Robert Cone, Lois Virginia Cone and Nancy Elizabeth Cone, the minor children of the parties, subject to reasonable visitorial rights in (appellee) defendant." The order was made effective as of July 31, 1949.
On February 7 and on March 8, 1950 respectively, the mother of said children filed with the superior court affidavits in said cause in which she stated that conditions and circumstances surrounding the parties had materially changed since the issuance of the order of August 1, 1949, in that she had remarried and that she then had a home adequate to take care of Lois Virginia and Nancy Elizabeth Cone and asked for a modification of the decree giving her the custody of said minor children. An order to show cause was issued and thereafter on March 6 the matter came on for hearing which lasted approximately 4 days and on March 11, 1950, the court entered its minute order modifying the decree of divorce and the subsequent modifications [73 Ariz. 274] thereof as hereinafter set forth in extenso.
The order of March 11, changing the custody of the two minor children was entered as a minute order but was never reduced to writing, signed by the trial judge and filed of record as were the previous orders of the court changing custody of the minor children. It is from this order that William K. Cone appeals and has assigned five separate assignments of error. The first two are based upon the ground that there was no change of conditions affecting the welfare of the minor children between the date of the order of August 1, 1949, giving custody of the children to the father and the date of trial. Assignment No. 3 is directed at the insufficiency of the evidence as a matter of law to justify the ...