Calegaris v. Calegaris

[265]

COOPER, J.

This appeal is from an order purporting to modify a judgment and decree of divorce by directing defendant to pay to plaintiff the sum of $60 per month for the future care, education and support of four minor children.

The action was brought by plaintiff for a divorce on the ground of desertion. She asked in the complaint for the care, custody and possession of the minor children—Mario, aged twelve years; Inez, aged ten years; Marguerite, aged eight years; and Hugo, aged six years—and for one-half of the community property, alleged to have been of the value of $60,000.

The court made findings, and caused to be entered a decree on the seventeenth day of April. 1902, granting plaintiff a divorce, the custody of the minor children, and awarding her the sum of $30,000 as permanent alimony for her support, being the amount prayed for in the decree, and which was one-half of the community. property. This decree gave no directions as to the education of the minor children, and made no provision for their maintenance or support, but gave to plaintiff their “sole care, custody, control and possession.” It has never been appealed from and has become final.

On August 25, 1902, but a little over four months from the date of the decree, plaintiff filed her petition, in which she set forth that the original decree made no provision for the maintenance, support, care, custody or education of said minor children, or any of them, and that they are still minors. The petition further stated that each of the said minors was without means, but contained no statement as to the plaintiff’s means, or as to the $30,000 she had received from the defendant under the decree, and concluded with a prayer that the court order the defendant to pay the plaintiff the sum of $50 per month each for the care, custody and education of said minors. It appeared at the hearing that the minors were all in plaintiff’s custody, living in her house and attending the public schools. It also appeared that the defendant married after the decree, and now has another family to support.

After the hearing, and on the thirteenth day of October, 1902, the court made an order modifying the judgment and decree of divorce by directing the defendant to pay to plaintiff the sum of $15 per month each from said date “for the