Storrs v. Storrs

HANSON, J.

pro

tem.

Defendant appeals from an order entered on April 6, 1939, modifying the terms of the interlocutory and final decrees of divorce theretofore entered on September 2, 1937, and November 10, 1938, respectively.

The main contention of appellant is that the court below did not have jurisdiction to make the order. The record discloses that the decree was awarded to the wife, respondent here, with a provision that each parent have custody of two children for six months in each year and ordering the husband to pay to the wife for her support and that of the children the sum of $100 each month regardless of whether the children were residing with the mother or the father. Within a year of the date upon which the interlocutory decree was entered respondent caused to be served upon appellant an order to show cause why he should not be required to pay her $200 per month during the nine months school period of each year and $100 during the remaining months of the year, and why the custody of the children should not be awarded to her during the entire school period and to him during the vacation period. Upon the hearing, in which oral testimony was given but not preserved, the court dis

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charged the order. Within three months of the hearing the respondent again procured a like order to show cause and had it served upon the appellant. Upon the hearing thereof the latter objected that the court was without jurisdiction to modify the support and custody provisions of the decree of divorce as the discharge of the earlier order was

res judicata

in that the grounds in the supporting affidavits upon which each of the orders to show cause had issued were identical, or substantially so, and that there had been no change in conditions between the hearings on the two orders. The trial judge, who had not heard the testimony on the first hearing, overruled the objection, and after a hearing modified the provisions of the decree by requiring the appellant to pay to the respondent $150 monthly during the nine school months of the year and $100 during the other three months, and changed the custody provisions of the decree by directing that the children should live with their mother during each school year and with the father during the summer vacation period. Additionally he ordered appellant to pay $75 to counsel for appellant for their services in representing respondent on the then instant hearing.