Stone v. Stone

• Decision Date: 27 May 1902
• Docket Number: 19,588
• Citation: 64 N.E. 86,158 Ind. 628
• Parties: Stone v. Stone
• Court: Indiana Supreme Court

64 N.E. 86

158 Ind. 628

Stone v. Stone

No. 19,588

Supreme Court of Indiana

May 27, 1902

From Sullivan Circuit Court; W. W. Moffett, Judge.

Suit by Della Stone against Edgar B. Stone for divorce. From an order refusing to modify the decree, defendant appeals. Transferred from Appellate Court, under § 1337u Burns 1901.

Affirmed.

S Chaney and A. G. McNabb, for appellant.

J. T Hays, W. H. Hays and J. S. Bays, for appellee.

OPINION

Hadley, J.

Appellee was divorced from appellant upon her petition for failure to provide and cruel and inhuman treatment, in July, 1897. The parties had two female children, aged four and seven years and in the decree the court awarded to the plaintiff the care and custody of the younger, and to the defendant, the older, with certain mutual rights of visitation, said custody to continue until the further order of the court. On March 20, 1900, appellant filed his petition for a modification of the order, alleging that the visiting of the children as provided in the order was an injury to their proper training and discipline, made them restless and dissatisfied, and interfered with their attendance at school, and that their best interests required a modification of the order, awarding to defendant permanently and finally the full and complete custody and control of the oldest, especially, and he asked for an order accordingly. This petition appellee answered by a general denial, and she also filed a cross-petition, averring that appellant was not a fit person to have the custody of the children, or either of them; that he has no home for them, or either of them, and is about to remove from the State, and by his rough treatment has caused great and permanent injury to the nervous system of Opal, whose custody he has had; that she (appellee) has a good and comfortable home for both of said children, is able to support and care for them, and prays the modification of said order giving to her the permanent and unconditional custody of both. After hearing the evidence, the court found for appellee on her cross-petition, and rendered the following judgment: "It is therefore ordered, adjudged, and decreed that Della Stone be, and she is hereby, given the custody, care, and maintenance of Fleeta and Opal Stone without condition. And it is further adjudged that the costs accrued in the trial of this cause, taxed at ----- dollars, be paid by the petitioner, Edgar B. Stone." The usual phrase, "until the further order of the court", was not appended. Whereupon appellant filed his motion for a modification of the order upon these grounds: (1) The court had no legal authority to make a permanent order and final judgment in said cause. (2) Said judgment deprives the defendant of the right to open said cause, and for any reason question the custody of the children. (3) To modify said judgment so as to give the custody of said children to their mother "until the further order of the court." This latter motion to modify was overruled, which action of the court presents the only question involved in this appeal. The first two specifications are addressed to the validity of the judgment, and not to its form or substance, and are not, therefore, grounds for a motion to modify. Chicago, etc., R. Co. v. Eggers, 147 Ind. 299, 45 N.E. 786; Evans v. State, 150 Ind. 651, 655, 50 N.E. 820, and authorities cited.

It is contended by appellee that the third ground is not sufficiently specific to present any question under the decisions of this court (see Russ v. Russ, 142 Ind. 471, 473, 41 N.E. 941, and cases cited above); but assuming, without deciding, that it is, the motion was properly overruled for another reason. The legal force and effect of the judgment is precisely the same as if the words "without condition" had been omitted, and the words "further order of this court" employed. By substituting the words reserving jurisdiction for those complained of, the effect of the order would be to award to appellee the right to the exclusive custody and control of the children, and it can not be doubted that the court had the power to make such an order, if under the evidence the interest of the children required it. § 1058 Burns 1901; Stonehill v. Stonehill, 146 Ind. 445, 45 N.E. 600. If, as alleged, appellant was cruel and immoral, without a home for the child in his care, and about to take her out of the State and jurisdiction of the court, and, on the other hand, appellee was a suitable person, able and prepared to furnish both a good home and proper training, as she claimed in her petition, the duty of the court to make the order in question was plain.

We are unable to allow the contention that under § 1058 Burns 1901, jurisdiction over minor children upon the divorcement of the parents, can only be retained by an express reservation of such jurisdiction in the final decree, and in all subsequent modifications of the judgment, by the words "until the further order of the court", or their equivalent. Under the view we have taken of the law, the words "until the further order of the court" add no legal support to the subsequent jurisdiction of the court to change the custody of such children, if their welfare demands it. Section 1058 Burns 1901 imposes upon the court, in decreeing a divorce, the duty to make provision for the guardianship, custody, support, and education of the minor children. This duty is incumbent, irrespective of the issues or wishes of the parents, and springs in large measure form the public interest in the proper training and education of the children. In determining the question, the law gives the court a free hand to award the custody to either parent, or deny it to both, according to their fitness and ability at the...