Arne v. Holland
| Decision Date | 07 February 1902 |
| Citation | 89 N.W. 3,85 Minn. 401 |
| Parties | ARNE v. HOLLAND. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Ramsey county; William Louis Kelly, Judge.
Action by Frank M. Arne against Pauline L. Holland to modify a decree of divorce. Judgment for defendant, and plaintiff appeals. Affirmed.
1. The proper practice in securing a modification of an order or decree in divorce proceedings, under sections 4801-4803, Gen. St. 1894, is by application in the original action, and not by the commencement of an independent suit upon a new complaint. Upon a hearing for such modification it is discretionary with the trial court whether the evidence bearing upon the question shall be in the nature of affidavits, or duly sworn and examined witnesses. In this character of proceedings the court is not limited strictly to rules applicable to the introduction of evidence in ordinary cases, and its rulings and orders are not subject to the same legal exactness. The legal test required is that the court shall not abuse its discretion.
2. Evidence and rulings examined, and found to contain no error. Held that, in modifying a preceding decree as to the custody and control of a child, the court did not abuse its discretion. E. S. Thompson, for appellant.
W. H. Williams and Freeman P. Lane, for respondent.
Appellant and respondent were married and lived together as husband and wife from 1890 until about 1897, when a divorce was granted the husband from the wife; and in the decree the following disposition was made of their child, then about five years old: ‘That the plaintiff, Pauline L. Arne, be, and she is, awarded the care, custody, and control of the child, Raymond S. Arne, until he attains the age of eight years; that the defendant, Frank M. Arne, be, and he is hereby, awarded the care, custody, and control of the said child, Raymond S. Arne, from the time said child attains the age of eight years until he attains his majority; that, during the time said child remains in the custody of either parent as provided herein, the other parent be, and he or she is, permitted to call upon and visit said child at all reasonable hours of the day, as often as twice every week; and that such parent be, and he or she is, allowed the custody and control of said child one day in every calendar month.’ Soon after the granting of the decree of divorce, respondent married Theodore Holland, and until a short time prior to the trial of the present action the child was under her control. During 1900 respondent was engaged in a business necessitating her traveling through the states of Wisconsin, Michigan, and Minnesota, and on her trips she took the boy with her,-at one time taking him to Canada, where she kept him awhile, for the ostensible purpose of removing him beyond the reach and control of the father. Appellant, deeming such action on her part a violation of the decree of the court as to the custody of the child, commenced this action by the issuance of a summons and filing of a regular complaint, setting up the entire history of the parties, and asking for a modification of the decree by striking out and expunging therefrom all control over and right of visitation to the child by respondent. To this complaint an answer was served, and the cause came on for trial upon the issues thus presented. The trial court made findings of fact and conclusions of law. After reciting the facts of marriage, divorce, and former decree, the court found that, ever since the entry of the decree, respondent had the care, custody, and control of the child, until the latter part of 1900; that she had contributed of her means substantially everything that had been required for the child's maintenance; that she had usually taken the boy with her on her business trips, and had conveyed him to Canada for the purpose of concealing him from appellant, who shortly thereafter forcibly brought...
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