Newby v. Newby

SHAW, J.

Defendant appeals from the judgment-roll alone from an interlocutory decree of divorce granted plaintiff upon the ground of alleged cruelty.

[1]

The contention is that the court failed to find upon material issues, in that defendant alleged desertion on the part of the plaintiff. In support of the judgment, we must presume, in the absence of the evidence brought up in the record, that no testimony was offered touching such issue, as to which there is no finding.

[2]

Conceding that at the time when the acts of cruelty were committed by defendant the parties were living separate and apart from each other, such fact could afford no justification for defendant’s acts of cruelty.

[3]

It appears there was a minor female child of the parties, aged six years, the custody of which was asked by each of the parents upon the ground of alleged unfitness of the other, and as to which issue the court made no finding. But, as a conclusion of law, found that it is for the best interest of the child that its custody be awarded to a third person, and thereupon made an order awarding its custody to a stranger. As father of the child, appellant attacks this order, claiming that in the absence of a finding of unfitness, the custody of the child should have been awarded to one of the parents. In this we agree with appellant. Section 138 of the Civil Code provides that in such actions the court may make an order for the custody, care, and support of minor children of the marriage; and section 246 of said code provides that the court, in the determination of such matters, shall be guided, first, “by what appears to be for the best interest of the child”; and, second, “as between parents adversely claiming the custody or guardianship, neither parent is entitled to it

[116]

as of right; but other things being equal, if the child is of tender years, it should be given to the mother. ’ ’ It is apparent that in making the order the court was controlled by subdivision 1 of said section.

[4]