Feist v. Feist

BROWN (Gerald), P. J.

This is an appeal by the plaintiff husband in a divorce action from an order modifying the interlocutory and final decrees of divorce awarding exclusive custody of the five children of the marriage to the defendant wife and ordering payment of $60 per month child support for each child. Both parties have remarried since their divorce.

The interlocutory decree entered December 20, 1960, awarded the parties joint custody of the children, made provision for actual custody of the children during certain periods of each year, and required plaintiff to pay $70 per month support for each child when with the defendant.

On January 26, 1962, when the final decree was entered, by stipulation the parties obtained an order modifying the interlocutory decree. This order awarded the parties joint custody of the children, gave the plaintiff actual custody, and specified certain rights of the defendant to reasonable visitation. The order contains no express provision for child support. A paragraph of the property settlement agreement, not before us but probably relating to support, is suspended so long as the order is in effect.

In February 1963, the defendant wife sought an order

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modifying the interlocutory and final decrees to grant her exclusive custody of the children and child support. After hearing the matter, the court entered its order, which, although it purports to strike only the support provisions of the earlier decrees, proceeds to make both support and custody provisions inconsistent with the earlier decrees by awarding the defendant exclusive custody of the children, and ordering the plaintiff to pay $60 per month child support for each child. The order makes no provision for visitation. The appeal is taken from this order. Since the custody provisions of the order must be reversed on other grounds, we need not resolve the inconsistency in the order.

At the outset of the hearing in this matter the defendant’s counsel moved to exclude any evidence relating to events before the January 26,1962, modification order on the grounds the order contains the implied finding that both parents were fit to have custody at that time, and for the court to consider earlier matters would permit relitigation of settled issues. Plaintiff’s counsel offered to prove, among other things, a course of conduct pursued by the defendant before this date which would tend to demonstrate she was a person of poor moral character; he offered to stipulate such evidence should be considered only on the issue of her present fitness to have custody. The court granted the motion excluding all evidence of events before the final decree was entered in January 1962. The court reasoned that “there is no point in relitigating acts prior to that time since there was a declaration [both parents] were fit at that time.” We have searched the entire trial court file in this matter for such a declaration and there is none. Nor is a finding of fitness to be implied from an order which awarded custody solely on the basis of a stipulation that custody could be so awarded. The policy against incessant reexamination in custody matters of issues previously determined is not applicable where the previous order was entered upon a stipulation.