24 Mich. 176 | Mich. | 1871
This is an appeal by Mrs. Chandler, from a decree altering so much of a former decree, dissolving the marriage of the parties, as related to the “care, custody and maintenance” of their infant child, Robert T. Chandler. The first decree, which was made in August, 1868, on the complaint of Mrs, Chandler, dissolved the marriage for extreme cruelty practised by defendant, as stated in the decree itself, and ordered that complainant should have the “exclusive care, custody, control and education” of the child, who was then about two and a half years old, and ■ that for his support, maintenance and education the defendant should pay to the register of the court the sum of five dollars each week until farther order. The defendant took no appeal from this decree, and has neither paid or been asked to pay the weekly allowance, and from the- time it was granted to the present, the child has remained in the custody of the mother and been supported by her father.
In January, 1871, the defendant petitioned the court, under § 8288, Comp. L., for an alteration of that part of the decree relating to custody and allowance, but made no proof beyond the petition. This application was met by two affidavits made by Mrs. Chandler’s father.
The -main facts set forth by the petition, as a ground for relief, are in substance, that just before the court made the decree of 1868, an agreement was reached between the parties by which certain specified items of property were set over to Mrs. Chandler in lieu of alimony and for the
On the argument before us, it was at first objected that this decree, made on petition, was not one from which an appeal would lie. It was very obvious, however, that counsel had no confidence in the objection, and we think it has no basis to rest on. The second decree was as truly -a final decree as the first, and the matter is too plain to permit discussion.
IJpon the merits, the case appears to us to be decided by Perkins v. Perkins, 12 Mich., 456. See also, Cook v. Cook, 1 Bari. Ch. R., 639.
No new facts or change of circumstances upon which to found an alteration of the decree are set forth. No complaint is made that the mother has not been, or is not now, a suitable person to have the care of her little son, or that she will fail from lack of affection, judgment or discreet
If the petitioner was then wronged, which does not appear, he should have moved without delay. He knew as well then as he does now what the first decree required, and whether it was in derogation of any lawful arrangement, and if dissatisfied he should have appealed or taken action in the court below. The same observation applies to what is said about Mrs. Chandler’s fortuné and his own poverty. No importance can be attached to the statement that the petitioner’s parents are able and willing to care suitably for the child, and that their so doing would relieve him from much of the expense to which the terms of the first decree expose him.
The nature and status of the case imply the necessity of deciding between the parents of the child, and. not between one of them and any third persons; and the saving in future of five dollars per week by the petitioner, if such a result could be clearly anticipated after what has happened, ought not to be weighed against the happiness and welfare of the child, and the circumstances conducive thereto, in view of his tender age and the ties which subsist between the little one and the mother. We cannot, therefore, agree with the court below in holding that the petitioner has made a case to warrant any revision of the first decree, and as a consequence we conclude that the decree appealed from should be reversed; that the petition should be denied, and that Mrs. Chandler should recover her costs, in this proceeding, of both courts.
