Dowell P. WARD, Appellant,
Aurelia C. WARD, Appellee.
[88 Ariz. 133] W. C. Ferguson, Holbrook, and C. D. McCauley, Winslow, for appellant.
Marshall W. Haislip and Minne & Sorenson, Phoenix, for appellee.
This is an appeal from an order of the trial court denying appellant's motion for modification of certain provisions of a divorce decree governing the custody of the minor child of the parties herein. The original divorce action was instituted by appellee Aurelia C. Ward (since remarried to one Dotts) against Dowell P. Ward, the appellant. The parties will hereinafter be referred to as they appeared in that action, i. e., as plaintiff and defendant.
As grounds for divorce plaintiff's complaint alleged cruel treatment on the part of defendant. She further demanded custody of the child, Paul Carroll Ward, then six years old, alleging her own fitness and defendant's unfitness to have such custody. Judgment was entered for plaintiff, granting the divorce, settling the property rights of the parties, and awarding care, custody and control of the minor child to plaintiff, the mother. Defendant was ordered to contribute $65 per month for the support of the child. The trial court made no findings of fact, and no transcript of these proceedings has been furnished. The following provision was included in the decree with respect to defendant's visitation rights:
'That the care, custody and control of the minor child of plaintiff and defendant, to wit: Paul Carroll Ward, be, and is hereby, awarded to plaintiff with visitorial rights extended to defendant once a month for a period approximating three hours, the defendant
to give plaintiff at least two days notice of the time of his visitation; and, said child shall not be removed from the jurisdiction of this Court without order of the Court in writing [88 Ariz. 134] except for short periods of time which will not interfere with the visitorial rights of the defendant.'
This judgment was dated January 25, 1955. No appeal was taken therefrom.
In the spring of 1957, defendant petitioned the trial court to exercise its continuing jurisdiction over the divorce decree and to modify the provision above set out by awarding custody to the father for the summer months of each year. Plaintiff's response to this petition relied on two points: that there had been no change of circumstances sufficient to justify a modification of the decree; and that defendant '* * * is not a fit and proper person to have part-time custody of said child, and his morals are such as would make it detrimental to the best interests of said child to be placed in his custody for any time whatsoever.'
On June 3, 1957, a hearing was held on this petition, the transcript of which is now before us. At the close of the evidence, the Court said simply: 'The court is going to deny your petition * * *.' No findings were made in regard to the allegations of the plaintiff's response above referred to.
The third proceeding, which gave rise to the instant appeal, was commenced in the summer of 1959. Again defendant made formal application for a modification of the decree as respects visitation rights, and again plaintiff resisted the motion. In her response plaintiff once more relied on claims that no change of circumstances had occurred and that defendant was not a fit person to have custody of the child. This time plaintiff omitted any reference to alleged immorality on the part of defendant. In ruling against defendant, the court declared:
'I am of the opinion that the evidence does not show any noticeable change of circumstances, therefore, the Petition to Modify the Decree is hereby denied.'
This appeal followed, under A.R.S. § 12-2101, subd. C. See, Cone v. Righetti, 73 Ariz. 271, 240 P.2d 541.
It is well settled that a condition precedent to the modification of the child custody provisions of a divorce decree is a showing of changed circumstances affecting the welfare of the child. Davis v. Davis,78 Ariz. 174, 277 P.2d 261; Burk v. Burk,68 Ariz. 305, 205 P.2d 583; Schulze v. Schulze,79 Ariz. 86, 284 P.2d 457; Cone v. Righetti, supra. However, if a change in circumstances is proved, the court which entered the decree has continuing jurisdiction to order a modification thereof, in the exercise of its sound judicial discretion. Grimditch v. Grimditch,71 Ariz. 198, 225 P.2d 489; Barrett v. Barrett,44 Ariz. 509, 39 P.2d 621. The change of circumstances rule as a limitation on modification of a [88 Ariz. 135] divorce decree is one aspect of the principle of res judicata. Elders v. Elders,206 Ga. 297, 57 S.E.2d 83; Evans v. Evans, 195 Miss. 320, 15 So.2d 698; Goodman v. Goodman, Tex.Civ.App.,236 S.W.2d 641; Goldson v. Goldson,192 Or. 611, 236 P.2d 314; Meredith v. Meredith,203 Or. 45, 276 P.2d 387; Brim v. Struthers,44 Wash.2d 833, 271 P.2d 441. The court, in issuing the original decree, found that the arrangement, therein set out was for the best interests of the child. No appeal having been taken, this decision became final, upon the facts then before the court, and no alteration will be made without a showing that the factual situation has changed to ...