231 N.W. 795 | Minn. | 1930
When, on November 29, 1929, a hearing was had upon plaintiff's renewed application for the custody of her child, the court not only considered certain affidavits then presented by the parties but heard the testimony of many witnesses, and on December 30, 1929, made the order from which this appeal is taken by plaintiff. The order reads:
"It is ordered that the judgment herein be and hereby is modified with reference to the custody of the said minor child as follows: Custody of the minor child, Thelma Rice, be and hereby is awarded to Mrs. Andrew Anderson until June 10, 1930, and on that date said child shall be delivered to its mother, Mabel Rice, who is awarded the custody of said child until August 20, 1930, at which time said child is to be returned to Mrs. Andrew Anderson.
"It is further ordered that defendant for said three months' period pay to plaintiff the sum of $25.00 a month * * *. Either party on or after August 20, 1930, may apply to this court for a change in this order, relative to the custody of said child, for the coming year."
It will be seen from the quoted part that not much is to be gained by the appeal. Before the decision can be filed plaintiff will have the custody of Thelma. And it further appears that the court upon the testimony so far received is not prepared to act upon the *178
question of a more permanent custody of the child. The question is left open for further hearing on or after August 20, 1930. Ordinarily such an order for the temporary custody should not be considered appealable as a final order upon a summary application in an action after judgment. G. S. 1923 (2 Mason, 1927) § 9498 (7). But the situation is somewhat unusual, and it is about time that some final determination be made concerning such permanent custody and care of Thelma as is ordinarily made in divorce decrees where the parties have a minor child. Where the child is very young not much harm may result to the child from shifting it at short intervals from one home to another. The court may have had good reason for so far having left the custody of Thelma undetermined except for short intervals. But the girl is now at an age when she begins to appreciate her situation, that she has no permanent home, and that her custody is a recurring dispute between her parents. To frequently change custodians and homes is distracting to a child and interferes with proper moral training and schooling. We consider the parties hereto, as well as Thelma, now entitled to have her custody speedily settled in that permanent manner in which usually the custody of a minor child is adjudged when its parents are divorced. Of course that does not mean irrevocably fixed. Changed conditions may be such that the welfare of the child demands a change of custody, State ex rel. Pappenfus v. Kourtz,
During the hearing the court quoted from Larson v. Larson,
Our conclusion is that the court has so far acted for the best interest of the child in making the order appealed from and that it should be affirmed except in this, that on August 20 next, or so soon thereafter as to the trial court is convenient, upon the evidence already taken or upon such further testimony as the court desires to hear, the court determine the future permanent custody of Thelma, and if such custody be awarded to plaintiff, then that defendant be required to make suitable and proper contributions for the maintenance of such child.
Plaintiff on the hearing of the appeal made application for attorney's fees and suit money. Under Eberhart v. Eberhart,
The order is affirmed except as above indicated.