
    [No. 14936.
    Department Two.
    November 19, 1918.]
    Adelina Grosso Badolato, Respondent, v. Frank Nicholas Badolato, Appellant.
      
    
    Divorce (99) — Custody and Support of Children — Agreements of Parties — Effect. A separation agreement providing for the custody and support of children and that the parties should not interfere with each other is avoided where the husband thereafter interfered with the wife, making threats to kill her; and the court in granting a divorce is not hound by the separation agreement.
    Appeal from a judgment of the superior court for King county, French, J., entered January 23, 1918, upon findings in favor of the plaintiff, in an action for divorce, tried to the court.
    Affirmed.
    
      Vanderveer & Cummings and H. McC. Billingsley, for appellant.
    
      
      Reported in 176 Pac. 24.
    
   Holcomb, J.

This is the second action brought by plaintiff for a divorce from the defendant. The first action was dismissed April 28, 1917, for failure of proof. Thereafter the parties entered into a separation contract, the material parts of which are, in substance, that their two children were to be placed in a home selected by three persons, and that the husband was to pay not to exceed $25 per month for board and care while thus maintained. Each party had the right to visit the children at proper times. It was further agreed that the parties would in nowise molest or in any way interfere one with the other.

Defendant denied the allegations of plaintiff’s complaint and pleaded a cross-complaint. We have carefully read the testimony in this case and believe that it preponderates in favor of plaintiff. The separation contract is silent as to property rights of the parties and as to costs in the event of a divorce. The evidence shows that the defendant interfered with the plaintiff, making threats to kill her, subsequent to the dismissal of the first action. This would avoid the custody provision in the separation contract.

The trial court heard the evidence and was better able to judge as to the truth thereof than are we. The trial court awarded plaintiff a divorce, custody of the two small girls, with permission for reasonable visitation by defendant, who was decreed to pay to plaintiff for their support $25 monthly, commencing January 1, 1918. An equal division of the property was made, and an attorney’s fee of $50 was granted plaintiff, with her costs. The defendant was obligated under the separation contract to pay $25 per month for the support of the children.

It is within the power of the court to grant the custody of children to one party or both, as will meet the best interest of the children. It has awarded them to the mother. In granting the decree the court was not bound by the separation agreement entered into by the parties when a change of conditions arose.

'We find no error. Judgment affirmed.

Main, O. J., Fullerton, Parker, and Mount, JJ., concur.  