BURKE v. BURKE

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Docket Number

No. 21866. Department One.

Attorney(S)

Wettrick Wettrick, for appellant. Tucker Tucker and Hyland, Elvidge Alvord, for respondent.

Judges

TOLMAN, J.

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Smart Summary

Factual and Procedural Background

This appeal arises from a judgment of the superior court for King County, entered December 15, 1928, in an action for divorce between Amy D. Burke (appellant) and Hugh H. Burke (respondent). The trial court granted a decree of divorce to the defendant, awarded him custody of the three minor children, possession of the family home (his separate property), and the community property of small value. The plaintiff wife was awarded only her costs, an attorney's fee, and $50 per month for one year. The appellant challenged primarily the custody award and related financial arrangements.

Legal Issues Presented

Whether the trial court erred in awarding custody of all the children, who are daughters, to the father despite the mother not being charged with immorality.
Whether the financial arrangement, including child support and property division, was reasonable in light of the custody determination.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court acknowledged that it is unusual to award custody of all children, especially daughters, to the father when the mother is not charged with immorality. However, the trial judge, having observed the witnesses and evidence firsthand, found that the mother's mental attitude toward her husband and another person justified awarding custody to the father. The Supreme Court, after careful review and deliberation of the evidence and the difficult circumstances presented, expressed regret at the lack of a better solution but found no basis to overturn the trial court's custody determination. The court also noted that the financial arrangements were not unreasonable if the custody was properly fixed as ordered.

Holding and Implications

The judgment of the superior court is affirmed.

The direct effect of this decision is to uphold the trial court's award of custody to the father, the division of property, and the financial provisions for the mother. The opinion does not establish new legal precedent but confirms the trial court's discretion in custody matters based on the particular facts and evidence presented.

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AMY D. BURKE, Appellant, v. HUGH H. BURKE, Respondent.

DIVORCE (100) — CUSTODY OF CHILDREN — GROUNDS FOR AWARD. The custody of all the children may be awarded to the father, though the mother was not charged with immorality, where that appears to be the wisest course.

TOLMAN, J.

This is an appeal from an interlocutory decree establishing the right of the defendant to a decree of divorce; awarding him the custody of the three minor children; the home, which is his separate property, and the community property which is of small value. To the plaintiff wife is awarded only her costs, an attorney's fee and $50 per month for the period of one year from the entry of the interlocutory decree.

The financial arrangement is not unreasonable if the custody of the children has been rightly fixed, and the contest here is chiefly confined to the issue of the custody of the children.

[1] It is quite unusual in these cases to find all of the children, especially when they are all daughters, awarded to the father, but this is an unusual case. The mother was not charged with immorality, nor does the proof lead to any inference of immoral conduct upon her part, and yet the trial judge, who seems to have been deeply impressed with his responsibility, was convinced, after seeing and hearing the witnesses, that the wife's mental attitude toward her husband and toward another was such as to call for the result reached.

After a careful consideration of all of the evidence, and after mature deliberation and pondering upon the distressing situation disclosed by the record, we can only regret that we are not endowed with sufficient wisdom to see any better solution than that which has been reached.

The judgment appealed from is therefore affirmed.

FULLERTON, PARKER, HOLCOMB, and BEALS, JJ., concur.