Cooley v. Cooley

467 P.2d 103, 86 Nev. 220, 1970 Nev. LEXIS 491

• Court: Nevada Supreme Court
• Decided: March 26, 1970
• Docket: 5974
• Status: Published

Opinions

OPINION

By the Court,

Mowbray, J.:

This is a child custody case involving a boy aged 10 and a girl aged 8.

The parties, Cecil J. and Diane Cooley, were married April 12, 1959. In early 1968, they agreed to go their separate ways. On April 1 of that year they entered into a separation agreement settling, among other things, the custody and support of their children. It was agreed that Diane should have the children’s custody, with Cecil having reasonable rights of visitation. Later, in October 1968, Diane filed for divorce. In December, Diane sent the children to Everett, Washington, so that they could spend the holidays with Cecil, where they still reside.

The contested divorce action was heard by the district judge in June 1969. At that hearing it was shown that Diane lived, absent benefit of clergy, for over a month with her paramour, whom she later married. This was after Cecil and Diane had agreed to separate and after the commencement of the divorce action. The children were present in the home during this period. Diane wrote Cecil of the “arrangement” before she sent the children to him for the Christmas holidays.

Based on this court’s holding in Sisson v. Sisson, 77 Nev. 478, 367 P.2d 98 (1961), Cecil seeks a reversal of the decision of the district judge, who awarded custody of the children to Diane.¹

Cecil urges that, as a matter of law, the district court abused its discretion in awarding the children’s custody to Diane. We do not agree, and we affirm the ruling of the district judge.

It is true that this court, in Sisson, supra, reversed the district judge’s award of custody to an adulterous mother because such conduct precluded any conclusion that she was a good mother and a fit and proper person to be awarded custody of the children. In that case, the court said, 77 Nev. at 488, 367 P.2d at 103:

“. . . Adult passions, apparently, sometimes provoke illicit togetherness. However, we cannot approve such conduct, especially its exhibition before beloved children. This is not a case where adultery is but an isolated occurrence. To the contrary, the wife-mother deliberately subjected her children to a shameful, immoral, unwholesome environment of more than a year’s duration.”

Admittedly, child custody decisions present difficult problems for the district courts. That is the reason broad discretion is given to the district judges, who have before them the parties and the children. Adams v. Adams, 86 Nev. 62, 464 P.2d 458 (1970); Boisen v. Boisen, 85 Nev. 122, 451 P.2d 363 (1969); Cosner v. Cosner, 78 Nev. 242, 371 P.2d 278 (1962); Timney v. Timney, 76 Nev. 230, 351 P.2d 611 (1960). Of course, that discretion must be operated within the standards of NRS 125.140, which provides, in part:

“1. The court, in granting a divorce, shall make such disposition of, and provision for, the children, as shall appear most expedient under all the circumstances, and most for the present comfort and future well-being of such children.”

In the instant case the wife-mother and her paramour did not cohabit, as was done in Sisson, supra, openly and notoriously in excess of a year. In Sisson, the court said, 77 Nev. at 489, 367 P.2d at 103:

“We acknowledge that one may be a bad wife, but a good mother; that adultery is many times considered, because of the particular facts involved, a most serious offense against the spouse and not as serious an offense against the children.”

As the Supreme Court of Washington observed in Norman v. Norman, 176 P.2d 349, 351 (Wash. 1947):

“. . . Is the respondent who, although not promiscuous, admits she is an adulteress, necessarily, by reason of that fact alone, conclusively shown to be an unfit person to have custody of her child? The trial court, in awarding custody of children in divorce actions, must consider many imponderable factors bearing upon the future welfare of the children. The adultery of a mother is, of course, a very weighty factor, but we are not prepared to say that it excludes the consideration of all other factors and is alone completely determinative of the issue.” See Bialac v. Bialac, 50 Cal.Rptr. 12 (Cal.App. 1966); Mason v. Mason, 179 A.2d 897 (Md. 1962); Standley v. Standley, 379 P.2d 868 (Ore. 1963); Dearden v. Dearden, 388 P.2d 230 (Utah 1964); 2 W. Nelson, Divorce and Annulment, § 15.06 (2d ed. 1961); 30 Geo.L.J. 313 (1942).

The remaining evidence before the district judge indicated that Diane had been a good mother. Indeed, Cecil apparently was of that opinion when he agreed in their separation agreement that Diane should have custody of the children, subject to his right of reasonable visitation.

Based upon the record in this case, we cannot say as a matter of law that the district judge abused his discretion in awarding custody of the children to Diane with visitation rights to Cecil. We therefore affirm the judgment.²

Zenoff and Batjer, JJ., concur.

1 The district judge in his decision said in part:

“. . . In making this award the Court wishes to make it abundantly clear that it is not in any way condoning her [Diane’s] admitted actions regarding the other man as brought out by the evidence and discussed in counsel’s legal briefs on file herein. . . . The Court accepts the premise here that one indiscretion on the part of the Plaintiff in the light of all the facts and circumstances in proof, does not make her a bad mother or render her unfit to have custody of these minor children.”

2 We expressly overrule any views in Sisson, supra, which may be inconsistent with those expressed herein.