[No. 33078. Department One. Supreme Court March 28, 1955.]
MARIANNE R. HOYT, Appellant, v. EARL ARTHUR HOYT,
Respondent.«1»
[1] DIVORCE - APPEAL - REVIEW - PARTIES ENTITLED TO ALLEGE ERROR - EFFECT OF DECREE - DIVORCE OF PARTIES. Where, in a divorce action, in which both parties asked for a divorce, the wife appealed from the decree, which awarded a divorce to the husband, the supreme court will not consider her contention that the divorce should have been granted to her rather than to her husband.
[2] APPEAL AND ERROR - REVIEW - FINDINGS - CREDIBILITY OF WITNESSES. The trial judge is in a better position to pass upon the credibility of witnesses than are the members of an appellate court.
[3] DIVORCE - APPEAL REVIEW - CUSTODY OF CHILDREN. Unless an abuse of discretion patently appears, the supreme court will not overturn conclusions reached by trial courts in child custody matters.
Appeal from a judgment of the superior court for Clark county, No. 29796, Ott, J., entered May 21, 1954, upon findings in favor of the defendant, in an action for divorce, tried to the court. Affirmed.
Sanford Clement, for appellant.
McMullen, Snider & McMullen, for respondent.
«1» Reported in 281 P. (2d) 856.
[1] See 17 Am. Jur. 320.
374 HOYT v. HOYT. [46 Wn. (2d)
FINLEY, J. -
In this action, the husband and the wife each asked for a divorce and for the custody of the two minor children born of the marriage. After a hearing, findings of fact conclusions of law, and a decree were entered, awarding a divorce and the custody of the minor children to the husband. This appeal followed.
[1] The appellant wife urges that the divorce should have been granted to her rather than to the husband. We find no merit in this contention. Smith v. Smith, 45 Wn. (2d) 672, 277 P. (2d) 339.
The appellant wife contends that the trial court erred, (a) in finding or concluding that she was unfit to have custody of the children; and furthermore, that the court erred, (b) in finding or concluding that the husband was a fit person, and (c) in awarding custody to him.
[2, 3] We have said in numerous cases that the trial judge, at first hand, is in a better position to pass upon the credibility of witnesses than are the members of an appellate court. Cooper v. Cooper, 39 Wn. (2d) 786, 238 P. (2d) 1204. Furthermore, just as consistently, we have said that, unless an abuse of discretion patently appears, we will not overturn conclusions reached by trial courts in child custody matters. Palmer v. Palmer, 42 Wn. (2d) 715, 258 P. (2d) 475. See, also, Chatwood v. Chatwood, 44 Wn. (2d) 233, 266 P. (2d)782.
There is evidence in the record to support or justify the custody decision made by the trial court. For this reason, and on the authority of the cases just referred to and the cases cited therein, the trial court should be affirmed. It is so ordered.
HAMLEY, C. J., SCHWELLENBACH, DONWORTH, and WEAVER, JJ., concur.