103 Neb. 860 | Neb. | 1919
This is a controversy over the custody of a child named William W. Hammond, who was born in Omaha, June
“This cause came on to be heard on motion of plaintiff to modify the decree as to the possession of William W. Hammond; and the court, having heard the evidence, and being fully advised, finds the plaintiff is entitled to the.custody and possession of'said child, subject only to the right of the defendant to visit said child at all reasonable times and places; and said defendant be and he is hereby ordered to deliver the custody and possession of said child to the plaintiff.”
Defendant petitioned the trial court July 14, 1919, to set aside this order, alleging that it was entered without petition or notice, and that plaintiff was not a proper person to have the care and custody of the child. Upon a trial of the issues raised by the petition and a denial of the allegations thereof, the modification was allowed to stand and the petition of defendant was dismissed. Prom that judgment he has appealed.
Defendant argues that the trial court, on a mere motion by plaintiff, without notice, did not have jurisdiction to modify the decree by changing the custody of the child. In the action for divorce the record shows:
“The court finds ever since said marriage the said plaintiff has conducted herself toward the defendant as a faithful, chaste and obedient wife.
“The court further finds the defendant, without any excuse or provocation therefor, has been guilty of extreme cruelty toward plaintiff.
For the purpose of a “further order” on the question of custody, the case was pending when the district court modified the decree. The record shows on its face that the child had been left with his grandmother temporarily, while plaintiff was ill, and that the provision in respect to custody was subject to modification at any time. The grandmother kept the child on those conditions. Defendant had appeared in the case, and knew that jurisdiction to modify the decree as to custody had been conferred upon and retained by the district court. Rev. St. 1913, sec. 1606; Everson v. Everson, 101 Neb. 705. Defendant had notice of the motion through his attorney of record. In a suit in equity like this, pending for the purpose of determining what is for the best interests of the child and of protecting the rights of the mother, if she should recover her health, the notice was sufficient.
The sufficiency of the motion itself to sustain the modification is also challenged, and in this connection it is insisted that the statutory procedure requires a petition, as distinguished from a motion. The relief sought by plaintiff was specifically pointed out in her motion, which reads thus:
“Comes now the plaintiff in the above-entitled cause and moves the court to modify the decree signed and journalized on January 14, 1919, by setting aside paragraph 5 of said decree, and substituting therefor, ‘ That the plaintiff shall have the care and custody of said child. ’ ”
The custody of the child, in the event of his mother’s recovery, was an undetermined issue raised by the original pleadings in a case still pending. For -the purpose of determing that issue, those pleadings were suffi
On the merits of the case, who should have the custody of the child ? In contemplation of accouchement, plaintiff went to a hospital, and there remained in distressing helplessness for nearly six months after the child was born. Defendant had abandoned his home with his wife, and she was taken from the hospital to the home of his father and mother, where plaintiff and a brother of defendant also lived. There plaintiff was confined to her bed for three weeks, when she so far recovered as to walk with crutches. These she used for about two months. Afterwards she used a cane, until she could eventually walk without it, though still a cripple. It is established by unchallenged findings of the tria.1 court that “plaintiff has conducted herself toward tbe p ulant as a faithful, chaste and obedient wife,” an hit “defendant, without any excuse or provocation tic .. fo.- has been guilty of extreme cruelty toward plaintiff.” Plaintiff left the home of her husband’s parents and went to the home of her father, where the family consisted of her father, her sister, her brother and hers ¿If. The parents of the child are legally and properly separated. In this unhappy situation, the solemn duty «n choosing between the grandmother and the mother is imposed upon the court. In performing this duty, tire court exercises the power of the state to act in the interests of the child — an infant ward.
AFFIRMED.