Chauncy O. STANBERRY, Appellant,
Ruth Ida STANBERRY, Appellee.
[81 Ariz. 216] Westover, Mansfield, Westover & Copple, Yuma, for appellant.
Rolle, Jones & Pace, Yuma, for appellee.
This action was commenced by Ruth Ida Stanberry against her husband, Chauncy O. Stanberry, for a divorce, division of the community property, custody of two minor children and their support. From an order awarding custody of the children to Mrs. Stanberry this appeal has been perfected.
Since the principal questions here presented involve the sufficiency of the evidence to sustain an award of the custody of the children to Mrs. Stanberry, a somewhat lengthy examination of the transcript of the proceedings in the lower court is necessary. However, certain preliminary observations should be first made: (1) In awarding the custody of a minor, the trial court is to be guided by the best interests of the child and its decision will not be altered unless it clearly appears that there was an abuse of discretion. Grimditch v. Grimditch, 71 Ariz. 198, 225 P.2d 489, rehearing 71 Ariz. 237, 226 P.2d 142. (2) Because no findings of fact appear in the [81 Ariz. 217] record, the presumption is that the court found every fact necessary to support the judgment; and such presumptive finding must be sustained if the evidence on any reasonable construction justifies it. Porter v. Porter, 67 Ariz. 273, 195 P.2d 132.
Appellant's evidence strongly suggests that for many years Mrs. Stanberry has suffered from a mental condition which caused her to act in an erratic manner to the extent of requiring hospitalization and preventing her from caring for home and children; that, while she was not actively psychotic at the time of the trial, she was subjected to episodical attacks possibly on a two-year basis, and that, in the future,
further periods of hospitalization could be expected; that appellee's illness was characteristic of one type of manic-depressive psychosis with a possibility of suicide and unintentional homicide.
The evidence of the mental condition of Mrs. Stanberry is extensive. It includes not only the evidence submitted at the trial of the case, but that of a related cause, being a petition for letters of guardianship filed by Mr. Stanberry and resisted by Mrs. Stanberry. Since we have concluded that we cannot say that the trial court necessarily abused its discretion in awarding the children to Mrs. Stanberry, some of the evidence which may have been considered in arriving at a decision is detailed.
In December of 1937 Mrs. Stanberry, who was then 21 years of age and unmarried, went on the recommendation of her private physician to the Menninger Clinic in Topeka, Kansas. At that time she became the patient of Dr. Karl Menninger who saw her every day for several weeks. Dr. Menninger testified:
'* * * we reached a conclusion rather rapidly as to what type of illness she had. * * * She had a depression which we called, officially, neurotic, to mean that it was not entirely justified by the facts in her life of which we outsiders could be aware. * * * we never did consider her psychotic. I would like to add that there are many different definitions of what psychotic means; but in all meanings of the word we never so considered her.'
Dr. Menninger was also queried as to whether Mrs. Stanberry's condition reflected a 'manic-depressive' type insanity, to which he answered:
'That expression appears nowhere in our records, and was not my opinion of her then or since; not my impression of a designation of her condition then or since.'
Dr. Menninger later saw Mrs. Stanberry in 1941 when she stopped by to see him-apparently not in a professional capacity-at which time 'everything was going fine.' He next saw her in September of 1952, about which he testified:
[81 Ariz. 218] '* * * I wouldn't say she was mentally ill. * * * I had a neurological consultation, then I sent her over to our marriage counseling division. * * * I sat right where you are sitting, and she sat in this chair, and she told me she and her husband were trying to make it, but they were both high-strung, and that they had had numerous quarrels, or frictions, and that she would over-react to those and get very mad, very sad, or something, and that she thought he was trying to do the right thing, and she believed he had that opinion of her, but they clashed, and she would get blue, and so on, and could I suggest how they could live better together, and I said I could try, but I thought that was a matter of counseling over a longer period of time, * * * and that I thought our marriage counseling department was ideal, * * *.'
In response to questioning by counsel as to whether their troubles were ones which would be settled by marriage counseling rather than by psychiatric treatment, he answered:
'It would not be quite fair to say I thought they could. I would rather say I hoped they could be settled by some counseling, because what she told me about what her husband expected of her, and some of the petty things he did that irritated her, made me think that if he had any intelligence at all he could be guided to a more skillful approach to his wife. What I think I would like to emphasize was that I didn't think she had any illness that required treatment. * * *'
Dr. Menninger was then asked if based on his experience was it his opinion that the welfare of the two children would be better served by ...