[ G. R. No. 35698. September 12, 1932 ] G. R. No. 35698
[ G. R. No. 35698. September 12, 1932 ]
IDONAH SLADE PERKINS, PLAINTIFF AND APPELLANT, VS. EUGENE ARTHUR PERKINS, DEFENDANT AND APPELLEE. D E C I S I O N
HULL, J.:
Untitled DocumentThe parties of this case are husband and wife, duly married in the Philippines on January 3, 1914, and the dispute occurs over the custody of the one child of that marriage, a daughter who was born on the 16th of October, 1914. Appellant amended her suit for separate maintenance and other relief by asking that the daughter, Dora, be placed in her custody.
A separate hearing1 was had without delay as to the custody of the minor child, and the trial court awarded the custody to the father. Section 771 of ihe Code of Civil Procedure among’ other things, provides as follows:
“SEC. 771. * * * Provided, That if such offspring be ten years of age or more they be allowed to choose which parent they prefer to live with, unless the parent so selected by said child be unfitted to take charge of such child by reason of moral depravity, habitual drunkenness, incapacity, or poverty, in which case the court shall determine the custodian of such child. * * *”
The minor child has expressed a preference to live with her mother. There is no question of habitual drunkenness or poverty. After the marital difficulties had resulted in litigation, the husband discovered a bundle of old letters written to appellant by a young man, named Chambers, during the summer of 1921. The trial court held that these letters show that appellant was guilty of infidelity to her husband. This finding of the court is denied and fiercely attacked in the brief of the appellant. We think it is not necessary to express opinion at this time, whether such a finding is correct or not. An act of infidelity so many years ago would not be conclusive at this time as to the moral fitness of a mother to the custody of a minor daughter. The treasuring of such erotic letters does, however, throw some light upon the mental and moral state of mind of appellant. The trial court also said in its decision:
“* * * in order to attain her own ends she went as far as to make statements absolutely contrary to the truth; and while testifying before this court on the trial of this incident she could not but reveal how unscrupulous she is by stating one thing for another notwithstanding the fact that she was then testifying under an oath to tell the truth and nothing but the truth. She said for example, under oath, in order to succeed in her desire to obtain an allowance for support from the defendant, that the latter had abandoned her and had gone to live at the Army and Navy Club, when in truth and in fact that never happened; that the defendant had abandoned her in the months of May, June, July, and August, in Europe and in America, without having written to her even once, when the truth is that her very letters written to the defendant during that time (Exhibits 52, 52-A et seq.), which show that said defendant had been writing to her almost daily, with the exception of the time when he was on his journey from Europe to America; that said defendant had authorized her to engage in stock speculations in the New York market, when she knew that the contrary was true as she herself stated in her diary attached to this record as Exhibit 24. The plaintiff attempted to take advantage of the innocence and youth of her daughter Dora to attain her own ends by inducing the latter to think ill of her own father and to testify against him. These facts are shown by documentary evidence for the defendant marked Exhibits 53, 54, and 56. It may well be said that she considered any means tending to the attainment of her own ends as good and proper.”
It also appears in evidence that the appellant, over the objection of the father, removed Dora from school and took her daily to the court where she could listen to the charges and counter charges that her parents were making against each other. The father desired the custody primarily to remove her from such atmosphere and place her in a young ladies’ school in Switzerland, which school had tentatively been selected by the parents while living in the state of domestic tranquillity. There is no question in the mind of this court that the welfare of the child will be served by this action. The welfare of the minor is normally the controlling consideration in the matter of its custody, and where the evidence, as it does in this case, shows that the exception set forth in section 771 in the Code of Civil Procedure exists, the court will look for the future welfare of the minor. In our opinion this has been done by the trial judge.
This case was submitted to this court by stipulation of the attorneys on January 23, 1932. Two days thereafter appellant requested leave to file an additional memorandum which was denied by the court. On March 14, 1932, appellant filed a motion for new trial on the grounds of newly discovered evidence, and attached to said motion certain affidavits which show on their face that they were made on the 26th day of May, 1931. They related to matters of no consequence, are not newly discovered evidence, and the- motion was not filed at a proper time. The motion for new trial is therefore not entitled to serious consideration. The order appealed from is affirmed with costs against appellant. So ordered.
Avanceña, C. J., Street, Villamor, Ostrcmd, Villa-Real, and Abad Santos, JJ., concur.
Butte, J., concurs in the result.