#### Viola C. PRICE, Plaintiff in Error, v. Curtis A. PRICE, Defendant in Error.

No. 37244.

Supreme Court of Oklahoma.

Oct. 16, 1956.

Charles E. Grounds, E. Keith Cooper, Seminole, for plaintiff in error..

,M. W, Janes, Frank Seay, Seminole, for defendant in error,

CARLILE, Justice.

Viola C. Price (now Webber) and Curtis A. Price, are the parents of Barbara Ann Price. The parties were married;on January 10, 1948, at Okemah; Oklahoma, and thé child was born June, 19, 1949. After their marriage the parties lived on a farm near Okemah. Mr. Price, in order to supplement his farm income, obtained employment with a pipeline company. His work *773took him' into the' State of Arkansas. While he was in 'Arkansas Mrs. Price moved into Okemah, where she rented rooms.

The parties were divorced' in 1948.' Mr. Price then enlisted in the army and was assigned to duties overseas. While he was overseas the child, Barbara Ann, was born. It is, however, conceded that the child was conceived and born in lawful wedlock. Mrs. Price was unable to care for and stipport the child. She took it to Seminole to'the home óf Mr. and Mrs. W. A. Price, parents of Curtis A. Price, and requested that they give the child- a ■ home and care for it. The child was then eleven days old. - Viola Price also lived in their' h'ome with the child until the latter- part of 1949.

In October, 1949, Mr. Price obtained leave to return home and on October 13th of that year the'parties remarried. Shortly thereafter Mr. Price returned to his duties overseas. ■ However, before leaving he made arrangements for Mrs. Price and Barbara Ann to remain in the hóme of his parents and made provision for their support.

Several months thereafter Viola Price left the home of Mr. and Mrs. W. A. Price and went to' Holdenville where she obtained employment as á waitress' in the Holdenville Hotel Cafe, which position she held for several months. During this time she returned several times to Séminole, Oklahoma, to visit her child.1 She thereafter went to San Antonio, Texas, where she remained for eight months. She thereafter moved to Norman, Oklahoma, where sjie obtained employment from a photographer. She did not see her child during this period of time. She remained in Norman, Oklahoma, for six months. • She then moved to Oklahoma City.

On January 15, -1952, Curtis A. Price, hereinafter referred to as ' plaintiff, filed a petition for divorce against his wife, Viola Price, hereinafter referred to as defendant. The' action was predicated on infidelity. Defendant filed a cross-petition for divorce on the ground of neglect of duty. The trial court granted the divorce to defendant on her' cross-petition and the custody of the child Barabara Ann, upon agreement- and consent of defendant, was awarded to plaintiff-, ■ with ■ the . provision that it be kept in the home-of Mr. and Mrs. W. A. Priced parents of plaintiff.' ■

Shortly thereafter W. A. Price, by consent-of defendant, was-appointed-guardian of Barbara Ann by the County Court' of Seminole County. -Defendant thereafter and in the latter part of September, 1952, married Joseph C. Webber, an-Army Sergeant, and they now 'live in and own-their own home in Oklahoma City.

On February 10, 1955, defendant filed a motion to. modify the child custody provision of the divorce ■ decree and prayed that the custody of the child be awarded to her. The court denied the application, but modified the decree by granting defendant the right and privilege on the first weekend of each month of taking, the child to her home for the weekend, but required her to return it to the home of plaintiff’s parents in time for school on the following Monday morning.

Defendant appeals from this order and asserts that it is not sustained by the evidence and is contrary to .law.

Defendant contends -that the contest is' actually between her and the paternal -grandparents of the child for its custody and relies on the rule that in order to deprive a parent of the custody of a minor • child the evidence .must clearly establish the unfitness of the parent to have such -custody, and that -the welfare of . the child requires that the parent he- deprived of such custody; citing Ex parte Harley, 207 Okl. 71, 247 P.2d 508; Marcum v. Marcum, Okl., 265 P.2d 723, and other similar, cases. While this is the. general rule, we' have-also held that while the right of a parent to eustody of her minor child is of great importance in determining right to custody, it is not an absolute right, and is qualified- by considerations' affecting the welfare of the ■ child. Adams v. Adams, Okl., 294 P.2d 831; Nasalroad v. Gayhart, 208 Okl. 447, 257 P.2d 299, and other similar cases.

*774• ' The evidence shows that the child has been.in the custody and care of Mr. and Mrs. W. A: Price, paternal grandparents of the child, ever since it was - eleven, days old; - that they-áre fit and propér parties to have :the custody and .care of the child; that they are, greatly devoted to it, and that it has been well treated and cared for by them. The. evidence shows .that defendant voluntarily brought the child to the home of Mr. and Mrs. W.-A. Price and requested them to give it a home, and care for it. When the second divorce was granted she consented and agreed that the custody of the child be awarded plaintiff and kept in the home of his parents, and that she thereafter agreed and consented to th.e appointment of W. A. Price as guardian of the child. She, however, testified that she did so because she was in bad health and was unable to provide for the child and she thought at the time it was for the best interest of the child that she should do so. She further testified that circumstances and conditions have changed; that she has since married and is now able to give the child a home and to properly care for'and raise the child. There is some evidence to the effect that while plaintiff was in service overseas defendant had been guilty of some acts of indiscretion. This she however denies. Be this as it may, the evidence quite conclusively shows that since she had been married to Sergeant Webber she has lead a proper and moral life. ‘ She has joined the church, has been teaching a Sunday School- class and attends church regularly. Many of her neighbors and the pastor-of -her church testified that she is of good moral character and in their opinion she is a fit and proper person to‘have the custody and control of the child. The trial court made no finding to the contrary, but in his- remarks -made when pronouncing -judgment the court stated:

> “ * * * I don’t think it would be to the best interest of the child to change - homes altogether at this time. The child hardly knows its mother and the ■ mother hardly knows the child. I think they, should get acquainted. Later on, of cotirse, the order, if the facts justify it can be re-modified. Insofar as -modification .is concerned it-is going to be the order of this Court that the child will remain in custody of the grandparents for the time being, the mother will have the privilege to visit the child at any and all reasonable times to take it out away from the house and on one weekend a month, if she so desires she can take the child to, her home in Oklahoma City Friday afternoon, keep it .until Sunday afternoon. That .way they can become acquainted, but .the custody of the child will remain, not -in the father, — I notice.- in his testimony he said he was planning to get married and when he did he was going to take the child. Of. course, I don’t know so much about that, because the grandparents have custody of the child with the provision I -just stated. So that’s the order of the Court.”

The trial judge saw and heard the witnesses in, this case and was in a position to observe thpir demeanor and conduct. The order of the District Court does not permanently deprive the defendant, the mother, of the custody of her child, but leaves the matter of the custody of the child open for . further consideration of the Court which has continuing jurisdiction during minority -of the child.

After carefully considering and weighing the evidence we reach the conclusion that the judgment of the trial court is not clearly against the weight of the evidence and is not contrary to law.

Judgment affirmed.

. JOHNSON, C. J., WILLIAMS, V. C. J„ and CORN, DAVISON, HALLEY and JACKSON, JJ., concur.

WELCH and BLACKBIRD, JJ., dissent.