Cochran v. Cochran

WHELAN, J.

The parties to this action were husband and wife from November 15, 1952, until the entry of a final decree of divorce on November 22, 1963, following an interlocutory judgment in favor of the plaintiff on November 21, 1962. Their children, Wayne, now aged 8, and Susan, now aged 12, may be said to be the real parties in interest.

Plaintiff and defendant first separated in 1959. Plaintiff then took the children and placed them in the home of a non-related family, while she shared a room with another nurse. There was a reconciliation in 1960.

When the divorce action was commenced the parties executed a property settlement agreement, which provided for custody of the children in plaintiff, and monthly support of $75 for each child.

There was then an oral agreement that plaintiff would finish her education and get a degree as a nurse, and during that time defendant would take the physical custody of the children ; that when plaintiff was in a position to have the children defendant would then turn the children over to her.

There was then a written modification of the property settlement agreement providing that child support would not be paid to plaintiff during such times as defendant had physical possession of the children. The interlocutory judgment awarded custody to plaintiff, which was confirmed by the final decree.

Plaintiff remarried on January 28, 1964; defendant, very shortly thereafter.

On February 18, 1964, defendant’s motion for a modification of the custody provisions of the divorce decree to grant custody of the children to him and plaintiff’s motion for modification so as to increase the amount of child support were heard. Defendant's motion was granted; plaintiff’s denied by necessary implication. Plaintiff retained rights of reasonable visitation. Plaintiff has appealed from that decision.

[420]

At the time of the hearing, defendant and the children occupied an apartment in which they had been living for three years. Plaintiff was living in a house that had been awarded to her under the property settlement agreement, but which had been rented out at the time of the final separation of the parties, and which she was advertising for sale at the time of the hearing.