In re WILSON.
Judgment modified and affirmed as modified.
Lewis, Roca & Scoville, of Phoenix, for appellant.
Frank Beer, Kenneth Scoville, and Arthur T. LaPrade, Jr., of Phoenix, for appellee.
De Concini, Justice. Udall, C. J., and La Prade, J., concur. Phelps, Justice (specially concurring). Stanford, Justice (dissenting).
De Concini, Justice.
This case involves the custody of a minor, aged six and one-half years, Christopher William Wilson III, known as Bill. He is the natural son of the parties hereto.
The appellant and father, Christopher William Wilson, Jr., is a lawyer and was the petitioner in the trial court for a writ of habeas corpus. The respondent, Nancy Patterson Flaccus, nee Wilson, the mother, successfully resisted the writ below. Petitioner brought this appeal on the ground that the lower court abused its discretion in awarding Bill to the mother in the light of the evidence adduced before it.
The background of the family relationship is somewhat as follows. The parties were married in June of 1939. They had [74 Ariz. 198] two children, Nancy, a daughter born in March 1941, and Bill born in May 1943. The parties were incompatible. In June of 1947, the respondent left the home of the parties in New York with the children and stayed with respondent's mother in Pittsburgh. In August 1947, the parties entered into a separation agreement, settling their property rights and dividing the custody of the children, whereby Nancy was given to the father and Bill to the mother, subject to the rights of each parent to have temporary custody of both children during a three-weeks' period each summer. In September 1947, respondent proceeded to Charlotte Amalia, Virgin Islands, where she remained seven weeks. She was there granted a divorce. The court adopted the separation agreement and recognized the provisions for divided custody of the children.
In January 1948, respondent married Bliss Flaccus in Pittsburgh. The following day they left for Phoenix, Arizona where they were living at the time of the hearing on the writ. At the time of the hearing one child had been born as an issue of this marriage. In June 1948, petitioner married a widow with two children about Nancy's age.
The appellant raises three assignments of error on the ground that the court abused its discretion in awarding the child to the mother, in that:
1. The mother was unfit to have custody of the child;
2. The order of the trial court was against the best ...