75 Neb. 850 | Neb. | 1906
On the 3d day of March, 1904, Mabel Chambers filed her petition in the district court for Douglas county against Willard E. Chambers, in substance, as follows: That on the 5th day of August, 1901, the plaintiff filed a petition in said court against the defendant, praying a •decree of divorce, and the care and custody of a minor child, now about 9 years old; that the defend aid appeared personally in said cause, and after due hearing thereof the plaintiff was granted a divorce as prayed, hut no order was made with respect to the child; that at the time the decree was obtained it was agreed between the parties to the suit, that the defendant would pay the plaintiff, from time to time, a sum sufficient for the support of herself and the said minor child, and that for some months afterwards the defendant paid her various sums, averaging about $35 a month, but that some months ago the defendant ceased to make further payments to the plaintiff, and she is now without property of her own and without means of support; that the defendant enjoys a considerable income, but as to the amount of which the plaintiff is not informed, is possessed of a considerable amount of real and personal property, and capable of supporting plaintiff; that for some time subsequently to the said decree of divorce she had the care and custody of the child,
The defendant answered, admitting that the plaintiff obtained a decree of divorce at the time stated in her petition, but avers that her petition in the suit for divorce contained no allegations nor demand for alimony, and that the final decree therein contains no finding of fact or determination by the court touching, or in any manner relating to, alimony or the custody of the child, nor any order regarding the same, or either of them, and that the questions of alimony and the custody of the child were not reserved by the court, for further consideration; that at the time the said decree was entered the defendant owned no property, real or personal, otherwise than household goods of the value of $500, and was not in receipt of any income, save sufficient to meet the current expenses; that said household goods were given by the defendant to the plaintiff, who accepted the ownership and possession thereof, and that since the decree of divorce the defendant has at all times supported and maintained the minor child at his own expense, expending for that purpose about the sum of $20 a month, and that it is his purpose to continue to do so. Then follows certain averments justifying his removal of the child from the custody of her mother, and which it is not necessary to set out in detail. The reply admits, among other averments of the answer, that no order was made in the divorce proceedings touching the question of alimony, or the custody of the child.
The court dismissed the claim for alimony, and made qfl
It is not thought necessary, in order to dispose of the plaintiff’s appeal, to pass on the question whether a wife who has obtained a decree of divorce a vinculo, without alimony, may, at a subsequent term, maintain an application for a supplemental decree allowing alimony, because,
We come now to the errors assigned and argued by the defendant. It appears to be tacitly conceded that, Avith respect to the custody of the child, plaintiff’s application presented a cause properly cognizable by the district court, and, Avere it not, we should at least hold that it does. The plaintiff had custody of the child- when the divorce Avas granted. While her petition contained a prayer for her custody, no order Avas made respecting it. The effect of the decree, then, so far as the child is .concerned, Avas to leave the parties in statu quo. Sections 15 and 16, chapter 25, Compiled Statutes 1905 (Ann. St. 5338, 5339), are as follows:
*855 “Section 15. Upon pronouncing a sentence or decree of nullity of a marriage, and also upon decreeing a divorce, whether from the bonds of matrimony or from bed and board, the court may make such further decree as it shall deem just and proper concerning the care, custody, and maintenance of the minor c.hihlren of the parties, and may determine with which of the parents the children or any of them shall remain.
“Section 16. The court may from time to time, after-wards, on the petition of either of the parents, revise and alter such decree concerning the care, custody, and maintenance of the children, or any of them, and make a new decree concerning the same, as the circumstances of the parents and the benefit of the children shall require.”
The clause “and make a new decree concerning the same,” etc., in section 16 seems broad enough to allow the court, at a subsequent term, to enter a supplemental decree affecting the custody of the children, although the original decree contains no provision with respect to them. The question of the custody of the children, unlike that of alimony, is not one which concerns the parties, exclusively, but involves the rights of the children, and, to some extent, concerns the public at large. This, of itself, aside from the statutory provisions quoted, would justify a more liberal rule with respect to the custody of the children than to alimony.
It is claimed, however, that the court erred in rendering a personal judgment againnst the defendant in favor of Messrs. Baldrige and De Bord for their services as attorneys for the plaintiff in this proceeding. Section 12 (Ann. St. 5335) of the chapter referred to above provides : “In every suit brought, either for a divorce or for a separation, the court may in its discretion require the husband to pay any sum necessary to enable the wife to carry on or defend the suit during its pendency; and it may decree costs against either party, and award execution for the same; or it may direct such costs to be paid out of any property sequestered, or in the power of the court, or in the hands of a receiver.”
It is next urged that, the plaintiff having ceased to be the wife of the defendant, it was error to allow her counsel fees in this proceeding. This proceeding is simply a continuation of the divorce suit and one of its incidents, and we think that the authority of the court to allow counsel fees under the section of the statute • last cited continues until the subject matter of the divorce suit is finally settled and determined. See Brasch v. Brasch, 50 Neb. 73.
It is next claimed that the court erred in awarding the custody of the child to the plaintiff during one-half of each vacation period. This is a matter largely within the discretion of the trial court and depends, to some extent, at least, on the peculiar qualifications and fitness of the respective parties to have the custody of the child. The evidence touching these matters is somewhat voluminous, and we think it will suffice to say that, after a careful examination, we are satisfied that the discretion of the trial court was not abused.
We discover no prejudicial error in the record, and we recommend that the decree of the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the decree of the district court is
Affirmed.