168 Mo. App. 377 | Mo. Ct. App. | 1912
(after stating the facts). — -The statute provides there may be a review of any order or judgment touching the alimony and maintenance of the wife, and the care, custody and maintenance of the children, or any of them, as in other cases. [Sec. 2381, R. S. 1909.] There can be no doubt that, under this statute, the court granting the divorce retains jurisdiction as to the modification of the judgment or decree touching the maintenance of the wife and the custody of the children. These matters may be brought to the attention of the court by motion in the original cause, as here, at a subsequent term, for the proceeding is but a continuation of the original jurisdiction concerning the custody of the children. [See Cole v. Cole, 89 Mo. App. 228; Meyers v. Meyers, 91 Mo. App. 151.] But though defendant filed ‘ a proper motion in the case, setting forth the facts upon which the modification of the decree concerning the custody of the child was sought, the court refused him the right to introduce testimony in support thereof and denied the application upon a mere ore tenus objection thereto, as if it appeared on the facts stated in the motion no prima facie right to the relief prayed appeared. It
It appearing by the motion that the plaintiff, the mother, was about to remove the child from within the jurisdiction of the court, defendant was entitled to a hearing thereon and should have been permitted to show that the interests of the child would not be bettered by the removal.
The judgment should be reversed and the cause remanded. It is so ordered.