Soderberg v. Soderberg

TYLER, P. J.

Appeal from an order denying a motion to vacate and set aside a final decree of divorce upon the ground that it changed or modified the terms of the interlocutory decree referring to the custody of a- minor

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child, the issue of the marriage, it being alleged that such change was made without authority.

It appears from the record that the parties hereto were formerly husband and wife. Plaintiff brought an action against defendant for divorce on the ground of extreme cruelty. Her charges were of a serious nature. Judgment went in her favor. Findings were waived but the decree recited that the allegations of plaintiff were sustained by the evidence and that they were true. An interlocutory decree was thereupon entered on June 11, 1913, against Walter H. Soderberg and in favor of the plaintiff on the ground of cruelty. In and by the terms of this decree plaintiff and defendant were awarded the joint custody of their minor child, some six years of age, the defendant to pay to the plaintiff the sum of $25 a month for its support and maintenance.

On June 19, 1914, a final decree was entered dissolving the bonds of matrimony existing between the parties.

This decree ordered that the care, custody, and control of the minor child be given to the plaintiff, and that the defendant be permitted to visit it at all reasonable hours. It also provided, in conformity with the interlocutory decree, that the defendant pay $25 per month for the child’s support and maintenance.

Some two years thereafter plaintiff (who in the meantime had again married) removed with her husband to the state of Arizona, where she and the minor child still reside. Before removing from this jurisdiction, however, plaintiff asked for and received permission from the trial court to take the child with her. Some eight years after the entry of the final decree and in the month of January, 1922, defendant filed this petition and motion to vacate and set aside the final decree of divorce, and to enter in lieu thereof a final decree awarding to him and his former wife the joint custody of the child in accordance with the terms and provisions of the interlocutory decree. The trial court denied the motion and dismissed the petition. This is an appeal from the order.