[78 Ariz. 175] Chester J. Peterson, Safford, for appellant.
Gentry & Gentry and J. F. McNulty, Jr., Bisbee, for appellee.
LA PRADE, Justice.
The facts leading to this appeal are these: Charles Steelman Davis and his wife, Jacqueline Hooker Davis, were granted an Arizona divorce on September 19, 1949. Under the provisions of the decree the custody of their minor child, Charles Hooker Davis, was granted to the mother for ten months of each year. Mr. Davis was granted custody for the months of July and August.
On August 3, 1953, the mother, appellee herein, petitioned the court for an order modifying the custody provisions of the original divorce decree. It was alleged that the conditions under which the boy lived with his father detrimentally affected his health, safety and general welfare. A hearing was held after which the court ruled in favor of the appellee. On August 24, 1953 the trial court ordered that the custody provisions be modified to allow the father custody of the boy for only
two weeks of each year, rather than the two-month period originally provided.
Mr. Davis appeals from this order, asserting that the trial court abused its discretionary power to modify the original decree. It is asserted that there was no showing made, by the moving party, of a substantial change of conditions since the date of the divorce in 1949 and the date of the trial court's modification.
Under our statute, section 27-811, A.C.A.1939, the court retains continuing[78 Ariz. 176] jurisdiction to modify the custody provisions of minor children in a divorce proceeding. Grimditch v. Grimditch, 1951, 71 Ariz. 198, 225 P.2d 489. This power to modify the decree is to be exercised only when cogent reasons are shown. Gotthelf v. Gotthelf, 1931, 38 Ariz. 369, 300 P. 186. Such reasons must constitute facts or conditions unknown at the time of the original decree, or occurring subsequent to the decree. Burk v. Burk, 1949, 68 Ariz. 305, 205 P.2d 583. These substantial conditions must detrimentally affect the child whose welfare is the paramount consideration at all times. Cone v. Righetti, 1952, 73 Ariz. 271, 240 P.2d 541. But all changes in the activities or environment of a minor will not necessarily constitute a basis for a modification unless shown to be substantial and detrimental.
The trial court specified three reasons for its order. It was stated that while the boy was in the custody of his father, at the latter's beach home in Manhattan Beach, California, he received inadequate supervision, was exposed to hazards, and that the boy would be better off with his mother rather than in the father's bachelor residence.
The minor boy, age nine, came to his father in California on July 1, 1953. During the time the boy was in his father's custody the letter was employed as a metallurgist. Mr. Davis left his home for work each morning at approximately 7:15 a. m. after making breakfast for the boy and himself. He returned in the afternoons at approximately 4:30 p. m. On his return from work the father generally would play with the boy on the beach. Later they would have dinner together and attend some exhibition of interest to the boy, such as the aquarium or car races. It appears that the conditions relied upon by appellee occurred between the hours of 7:15 a. m. and 4:30 p. m. During these hours Mr. Davis had arranged for a neighbor, Mrs. Denn, to care for the boy. Both parties agreed that Mrs. Denn was a woman of excellent character. She is the mother of two children, a girl age twelve and a boy age seven. Her son and Charles often played together. The main argument below was whether Mrs. Denn adequately exercised her powers of supervision over Charles. It was shown that she permitted Charles and her son to fish and swim in areas out of her sight and immediate control.
While Mrs. Denn offered her services to Mr. Davis grauitously the father furnished her with funds to cover the expense of preparing lunch for Charles. It developed that both boys, Charles and Mrs. Denn's son, desired to eat lunch at a small restaurant near the beach. Mrs. Denn permitted this and gave the boys lunch money each day. The fact that the boy ate lunch at a commercial establishment rather than in a home is uninformative in itself. The father testified that he investigated the guality of food served at this [78 Ariz. 177] place and also checked to see that the boy, Charles, was not buying too much candy. In his opinion the boy was receiving good food. Appellee introduced no evidence designed to show that the cafe was unfit or that the food was of poor quality. In the absence of such showing we cannot say that Mrs. Denn's indulgence in the boys' wishes created a detriment to Charles' health and welfare or demonstrates that he received inadequate supervision.
One of the hazards specified by the trial court was the fact that Charles was permitted to go fishing from a pier extending out into the ocean. It was extimated that the depth of the water beneath this pier was thirty feet. But it was also disclosed that this pier was occupied by many people fishing, most of whom were adults. It was also brought out that a life
guard station was located at the land end of the pier. No evidence was submitted indicating that this pier created an unusual risk.
Another hazard stated by the court was that the boy was permitted to swim and play with a surf board on the beach. Again, there was no evidence that the beach was unusually dangerous or desolate. Testimony was given to the effect that the beach area was occupied ...