Oliver v. Oliver

• Court: Supreme Judicial Court of Massachusetts
• Writing for the Court: KNOWLTON, J.
• Citation: Oliver v. Oliver, 151 Mass. 349, 24 N.E. 51 (Mass. 1890)
• Decision Date: 02 April 1890
• Parties: OLIVER v. OLIVER.

151 Mass. 349

24 N.E. 51

OLIVER v. OLIVER.

Supreme Judicial Court of Massachusetts, Suffolk.

April 2, 1890

COUNSEL

W. Gaston and W.A. Gaston, for petitioner.

Geo. O Shattuck and D.E. Ware, for respondent.

OPINION

KNOWLTON J.

Upon a decree of divorce the court may make such decree as it may deem expedient concerning the care, custody, and maintenance of the minor children of the parties, and may afterwards from time to time, on petition of either of the parents revise and alter such decree, or make a new decree, as the circumstances of the parents and the benefit of the children may require. Pub.St. c. 146, § 29. The respondent requested the judge to rule, as matter of law, that there was no evidence upon which the court could justly modify the original decree, and order that the petitioner's access to the child should be by visits in Boston, away from the child's home with its mother. The only question raised by the bill of exceptions is whether the refusal to rule as requested was erroneous.

In providing for the custody of a minor child, while the feelings and wishes of the parents should not be disregarded the happiness and welfare of the child should be the controlling consideration. Id. § 32. In the present case the record shows that there was important evidence before the court which is not detailed in words. Both parents were present and testified. The judge had an opportunity of observing their appearance and manner, and of forming an opinion as to the temperament, disposition, and character of each of them. They had been divorced about two years before on account of the desertion of the husband, and the question before the court was, what order should be made in regard to the access of the father to his daughter, who was in the custody of her mother? The petitioner is a physician practicing his profession in the city of Boston, and there is evidence from which it may be inferred that he is possessed of considerable property. This daughter is his only child, and his heir presumptive. In case of the death of her mother, he would be her nearest relative, and her natural guardian and protector. The judge may well have thought it essential to the welfare of the child that the close relations which ought to exist between father and daughter should be maintained between her and her father. It was his duty to consider her welfare in reference, not merely to the present, but to the probable future, and, if need be, to require the sacrifice of temporary convenience to ultimate, permanent good. There are indications in the evidence that, in the alienation of the parents, their feelings were deeply involved; and the judge, who saw them, and heard their...