115 Neb. 615 | Neb. | 1927
Plaintiff sued for divorce on the ground of cruelty. Defendant filed an answer and cross-petition praying for a divorce. Defendant was awarded a decree with qualified custody of the minor child. Soon thereafter he applied for a modification of the decree as to the actual custody of the child. This application was denied. He appealed from the decree and the other final order; and plaintiff cross-appealed from the decree granting defendant the divorce.
Plaintiff and defendant were married February 25, 1920. The daughter, Betty, was born November 3, 1921. In 1923 plaintiff sued defendant for divorce and was awarded a decree. Some months afterward a reconciliation was had, the decree was set aside, and they resumed the relations of husband and wife until February 23, 1926, when she began this suit. On December 7, 1926, the court entered a decree finding that plaintiff had offered no evidence in support of her petition, that the evidence in her behalf to sustain the allegations of her answer to the cross-petition was not sufficient, finding generally for defendant, and finding specifically that the plaintiff was not a fit and proper person to have the care of the child, and that such was not for its best interest, but that the defendant was a fit and proper person to have such custody. Further finding that the parents of plaintiff, living near Ulysses, Nebraska, were fit and proper persons to have the temporary custody of the child and had expressed a willingness to do so, the court entered the order granting defendant the divorce, ordering defendant to deliver the child to the grandparents on or before December 15, 1926, at Ulysses, there to be kept by them until June 1, 1927, when they were to return the child to defendant, who was to have it during the summer, and that, just prior to September 1, 1927, a further hearing should be had with particular reference to school facilities for the child. In its findings the court further found that it was permissible for plaintiff to live at the home of her parents while the child was there, the evidence having shown the
It seems to us that no good purpose can be forwarded by a detailed recital of the evidence in this case. Doubtless chivalry as well as delicacy and good judgment led counsel and court in the pleadings and decree to restraint of language in the charges and findings. We are well content to emulate their good example and to state for the permanent records of the court only what seems necessary to an understanding of the case. We are so minded also in the hope that these two young people, with so many attractive qualities, with such an inducement as this little child and its future welfare to lead them, may again be reconciled and renew their vows. The child needs both a father and a mother. If there be a chance that the natural love of a father and a mother for flesh of their flesh may again bridge the gap between them, we intend that no words of ours shall necessarily widen that space. Plaintiff, herself, has admitted, as we find from the evidence, that she was indiscreet and foolish. Suffice it to say the evidence shows that the court was justified in granting the defendant the divorce. We are satisfied to let that part of the decree stand affirmed without further discussion.
The chief controversy between the parties concerns the order for the temporary custody of the child, pointing, as might appear from the evidence, as well as from the decree itself, to a possible, if not a probable, permanent decree assigning that custody to the grandparents. The defendant had had a difficult financial situation to contend with. • He obtained his present position where he is at the head of the used-car department of a well-known motor car distributor and earns an average income of several hundred dollars a month, depending on sales. The nature of the po
This requires us to seek the proper rule applicable to the particular situation heretofore sketched. The general rule, as well stated by the brief of the plaintiff, is that in divorce actions, in making disposition of the custody of a child of tender years, the policy of the law is to look to the welfare and best interests of the child. Feather v. Feather, 112 Neb. 315; Hammond v. Hammond, 103 Neb. 860; Nathan v. Nathan, 102 Neb. 59; Boxa v. Boxa, 92 Neb. 78. These cases, and probably the majority of divorce cases, require an exercise of discretion in the court as to the assignment of custody of the minor child as between the plaintiff and defendant, and in such cases, where one parent is unfit and the other is found to be fit and receives the decree of divorce, the general rule is that the custody of the infant is given to the successful and fit party.
Section 1581, Comp. St. 1922, provides: “The father and mother are the natural guardians of their minor children and are equally entitled to their custody, services and earnings and to direct their education, being themselves competent to transact their own business and not otherwise unsuitable. If either dies or is disqualified for acting, or has abandoned his or her family, the guardianship devolves upon the other.” In Norval v. Zinsmaster, 57 Neb. 158, a frequently cited opinion written by Judge Irvine, then a commissioner of this court, and adopted by the court, the first sentence of the above section is quoted and then is followed by this discussion: “We are aware that this court has several times asserted that in such controversies as the
The decree below made an allowance to the attorneys for their services. The allowance we think was proper. It also made stipulated monthly allowances to be paid to the grandparents for the support of the child and for her clothing, which in view of our decision should be eliminated. In the proceedings to modify the decree, the trial court denied the application for attorney’s fees, without prejudice to plaintiff making further application here. While the plaintiff has been unsuccessful here on her cross-appeal, yet she is without funds and was brought here by defendant’s appeal. In the circumstances, we are of the opinion that, in addition to the $50 heretofore allowed plaintiff for her expenses in this court, we should, and therefore do, allow her the additional sum of $200 to cover expenses and attorney’s fees here.
For the reasons advanced in this opinion, the decree of the district court is affirmed so far as it grants the divorce to defendant, and reversed, with directions that it be modified as to the custody of the child so as to conform to this opinion; and that it provide, as herein stated, for the additional attorneys’ fees.
Affirmed in part, and reversed in part, with DIRECTIONS.