151 Minn. 458 | Minn. | 1921
Defendant moves to dismiss plaintiff’s appeal, on the ground that she has accepted part of the benefits decreed by the modification of the original judgment, namely, she has had the custody of the children during the summer vacation.
Upon rehearing of the motion to dismiss plaintiff’s appeal from the original decree, it was held that because she had accepted certain provisions granted therein she had estopped herself from appealing. Spratt v. Spratt, 140 Minn. 512, 166 N. W. 769, 167 N. W. 735. It will be noted that upon that appeal the questions as to. who of the parties was entitled to a divorce, the amount of the permanent alimony, and the custody of the children, were all ifor determination. As to the two propositions first named, plaintiff was in position to estop herself, but we are agreed that on this appeal, which deals solely with the custody of the children and their support, neither
The offer of defendant to consent to a reversal of the judgment-now appealed from should not be taken seriously, for it is apparent that what plaintiff seeks by the appeal is not a reversal but a modification, so that she will have the care and custody of the children beyond that granted by the modified judgment or decree.
The motion to dismiss the appeal is denied.
On March 17, 1922, the following opinion was filed:
Lees, C.
This is the third appearance of this case. Spratt v. Spratt, 140 Minn. 510, 166 N. W. 769, 167 N. W. 735; State ex rel. Spratt v. Spratt, 150 Minn. 5, 184 N. W. 31. It is now brought here by appeals from a judgment entered June 22, 1921, with which both parties are dissatisfied. The judgment to be reviewed amended one entered December 15,1917, by which the parties were absolutely divorced and the custody of four of their minor children awarded to the defendant and the custody of one to the plaintiff.
On June 7, 1919, defendant remarried and the four children were thereafter under the joint care and supervision of their father and his second wife. On June 21, 1920, plaintiff procured an order requiring defendant to show cause why the custody of these children should not be awarded to her and a suitable allowance made for their support. The divorce action was tried before Judge Steele of the Hennepin county district court. He died before the application to modify the judgment was heard and it was heard by Judge Dickinson. - Numerous affidavits were presented and a large amount of oral testimony introduced. On June 15, 1921, an order was filed, with a memorandum made part of it, directing that the judgment should be amended as follows: All but the eldest of the four children -in defendant’s custody were given to the plaintiff for three
“The paramount issue * * * is the welfare of the children. * * * With this uppermost in mind, I find that the best interests of the three children (naming them) demand that a large share of their actual care and custody should be given to their natural mother * * * without otherwise disturbing the legal guardianship as now fixed by the decree.”
It is earnestly contended in defendant’s behalf that the court has no power to modify a judgment in a divorce action, unless new circumstances and changed conditions are shown which render a modi-
The conditions are not the same as when the original judgment was entered. Defendant has remarried. By this change in his domestic relations, the supervision of the children has largely fallen to his young wife, 25 years of age at the time of the hearing. It may be true that her supervision is as competent as that of the housekeepers he employed before she took charge of his household and that the change is one for the better. Nevertheless it is but natural that, when his day’s work was done, defendant, who is a busy physician, should devote some of his time and attention to his wife to the partial exclusion of the children, who, prior to his remarriage, had his undivided companionship when he was at home. She will expect him to divide his allegiance to his children henceforth, in order that she may enjoy the attentions and companionship due from a husband to his wife. She has her own circle of relatives and friends and her individual interests into which defendant will enter.
Another changed condition mentioned in the memorandum is that plaintiff is in better health and spirits now than when the decree was entered. The record shows that, when the trial of the divorce action ended, Judge Steele suggested that plaintiff go to California to regain, her health, taking her youngest child with her, adding that when she returned she might be better able to manage her household affairs than she was at the time of the trial. Apparently the suggestion was not adopted. The trial had been protracted. Plain
The sum and substance of the whole matter is that neither party has ground for serious complaint as to the disposition made of the control and custody of the children, and in this respect the judgment should be sustained.
This disposes of all the questions requiring discussion, and the result is that the judgment is affirmed on both appeals.