199 P. 912 | Mont. | 1921
delivered the opinion of the eourt.
Judgment of divorce was entered in favor of the plaintiff upon the ground of extreme cruelty by the district eourt of Hill county. Thereby the plaintiff was allowed $50 per month as permanent alimony, and the defendant was awarded the care, custody and control of the children, born as the issue of the marriage, namely: Yesta Marie, aged thirteen years; Jack McCloskey, aged ten years; and Eleanor Usilla, aged eight years; and also Charles Arthur, a legally adopted child, one and one-half years old. The appeal is from the judgment and the order denying plaintiff’s motion for a new trial.
Plaintiff assigns four errors, raising but two questions for decision, viz.: Did the trial court err (1) in making award of permanent alimony? And (2) in decreeing the care, custody and control of the minor children to the defendant? Both of these questions will be considered together, as both involve inquiry as to whether the district eourt abused the discretion vested in it by statute, in each instance.
Section 3677, Revised Codes, vests the district court with absolute discretion as to the amount of alimony the husband shall be required to pay, and section 3679 reads as follows: “Where a divorce is granted for an offense of the husband, the court may compel him to provide for the maintenance of the children of the marriage, and to make such suitable allowance to the wife for her support, during her life, or for a shorter period, as the court may deem just, having regard to the circumstances of the parties respectively; and the court may, from time to time, modify its orders in these respects.”
With respect to the care, custody and control of the children of the marriage, the court may, before or after judgment, give such direction as may seem necessary or proper, “and may, at any time vacate or modify” its order. (Id., sec. 3678.) In
Judgment was entered that the minor children of the marriage and the adopted child be awarded to the defendant, and placed in his care, custody and control, subject to the right of the plaintiff to visit said children at all reasonable times, and subject to plaintiff’s right to have the children visit her at
The findings and judgment are amply sustained by the record, although it does not appear that the trial court was overly generous in its award of alimony, in view of the ill health of the plaintiff and the financial ability of the defendant. However, this is a matter which may be remedied at any time when considered necessary or desirable, upon a proper application and showing to the district court, under the provisions of section 3677. The same may be said respecting the custody of the minor children. If the welfare of the children appears to require it, the decree in this regard may also be opened up by the district court and set aside or modified as may appear best. It is now binding between the parties, and will only be changed by the court upon a consideration of the best interests of the minor children.
The court granting the divorce is unquestionably the proper tribunal to determine these questions, and our lawmakers have exhibited wisdom in leaving these subjects to the discretionary action of the district court. In consideration of such cases, the court is required to weigh evidence as to the conduct of both parties, the property owned by each, their respective financial burdens, physical strength, earning capacity, moral character and the ages and expressed wishes of the children
. In the ease before us the presumption is that the district court examined into and weighed all such considerations; and, as nothing appears in the record to in any manner overcome the force of this presumption, the order and judgment appealed from are affirmed.
!'Affirmed.