12 Colo. 421 | Colo. | 1889
Lead Opinion
delivered the opinion of the court.
Of thé four children of plaintiff and defendant, three were girls, two of them of very tender age. The plaintiff, after the separation, voluntarily left these children with defendant for about a year and a half before the commencement of this suit. He did not, by his replication, resist the prayer of defendant’s cross-complaint for the custody of the children. On the first trial plaintiff testified as follows: “ She [defendant] is a good nurse to the children. She is devoted to them when they are sick. A better person than she cannot be found to take care of them. I have only this fault to find: that she alienates the affections of the children from me, and makes me contemptible by the language she uses to them of me. I will say this: If it is intended to be asked if I will be satisfied for her to have the custody of the children, I will say, ‘Tes,’with this exception: Until the status of defendant changes by marriage or something of that kind, if there should be a divorce, with the privilege of visiting them, and of having them visit me; not only for a short time, but one at a time or two at a time, for a period of three or four days, if I desire; then'to be returned. I want the privilege of remaining by their side whenever they are sick.” The original decree gave the custody of the children to the mother, and plaintiff took no excep
As we have said before, the plaintiff was apparently satisfied with the original decree. At that time no objection or question was raised as to the propriety of the defendant continuing to have the household furniture as well as the rental of the house. The second or amended decree, after a full hearing, continued the mother as custodian of the children, and as to allowances for alimony and maintenance was somewhat more favorable to defendant than the original decree. The original decree was uncertain in its meaning, and unfortunately the amended decree is not altogether free from ambiguity. The evidence given on both trials being before us, we are at liberty to judge for ourselves as to what would be equitable in the matter of alimony and maintenance, having due regard for the interests and feelings of the parties plaintiff and defendant and the best interests of the children. Still we must bear in mind that the parties and their witnesses appeared twice before the court below, and that the judgment of the trial court is entitled to great consideration in reference to the custody of minor children and the amount to be allowed for alimony and maintenance. Powell v. Powell, 53 Ind. 513. As a rule we do not undertake to direct the entry of judgments in matters of form; but in this case, that there may be a speedy end of this litigation, wo will direct the entry of a modified decree by the county court to the following effect: “It is now ordered, adjudged and decreed by the court that the defendant, Marion A. Luthe, shall, until further order of the court, retain the custody and control of the said children of the parties hereto during their minority, to support, care for and educate them to the best advantage the condition and circumstances of the plaintiff and defendant will allow. That for this purpose defendant shall have the possession of lot 25 and south
Helm, 0. J., not sitting.
Rehearing
ON PETITION FOR REHEARING.
In the application for a rehearing appellant asserts that since the rendition of the decree in the county court there has been a change in the circumstances of the parties, notably, that two of the children, the second and fourth, have died; and that he has been to considerable expense in and about their last sickness, death and burial; also that appellee has been active in endeavoring to injure him in his business as a practitioner at law; and that his means and income are so small that he will not be able to comply with the modified, decree directed by our former opinion. He also offers to convey to appellee unconditionally his half interest in the premises occupied by the family residence subject to the incumbrance, as a consideration for his being released from all future pecuniary obligations on her account. Most of these matters are improper to be considered in the appellate court. This appeal must be prosecuted and determined upon the record; and the judgment must be limited to an affirmance or reversal of the judgment appealed from, or to a modification thereof based upon matters contained in the record. The hearing on this appeal is in no sense a trial de novo; we cannot allow the introduc
The petition for a rehearing is denied.
Hearing denied.