Scilini v. Scilini

CURTIS, J.

The parties hereto were granted an interlocutory decree of divorce on the twenty-third day of January, 1926. The decree was granted on the cross-complaint of the defendant, which charged cruelty on behalf of the husband, the plaintiff. By the decree the care, custody and control of the minor child of the parties, a boy then about sixteen months old, was awarded to the defendant, the mother “until the further order of this court, and the right is given to plaintiff to visit said minor child at all reasonable times, and at all reasonable times to take him to places of amusement”. The decree further provided that the plaintiff should pay to the defendant the sum of seventy-five dollars per month for the support of herself and said minor

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child. On January 31, 1927, a final decree of divorce was made by the court, which contained the same provisions respecting the care, custody, control and support of the minor child as did the interlocutory decree.

From the record before us it is apparent that many disagreements and controversies arose between the parties regarding the rights of the plaintiff under said decree to visit and have the custody of said minor. The plaintiff made frequent applications to the court for a modification of this decree. All of these applications, made prior to December 19, 1928, with one exception when the court permitted the plaintiff to take the minor child for a week’s visit to Hollister, were either denied by the court or withdrawn before any action was taken thereon. On December 19, 1928, plaintiff filed an application for a modification of both the final and interlocutory decrees respecting the care and custody of the minor child, and also regarding its support. With this application the plaintiff filed a supporting affidavit by himself to which the defendant filed a counter-affidavit. The application came on for hearing before the court on December 22, 1928. At that time the court made a minute order purporting to modify the interlocutory decree of divorce and submitted for decision the application for modification of the final decree. On January 9th following, the trial court filed and entered a formal written order modifying the final decree of divorce. From this order of January 9th the defendant has taken this appeal. No appeal was taken from the minute order of the court modifying the interlocutory decree. Whatever may have been the effect of this minute order, we .think it was superseded and nullified by the subsequent written order of the court of January 9th modifying the final decree of divorce and fixing and determining the rights of the parties to the care, custody, control and support of said minor child.