Barrett v. Barrett

WASTE, C. J.

Plaintiff filed a complaint for divorce against the defendant, who subsequently answered and cross-complained for an annulment. A judgment annulling and setting aside the marriage contract and awarding the custody of the minor child of the parties to the defendant was

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entered March 8, 1927. No appeal was taken therefrom, and no motion for a new trial or to set aside the judgment was ever made. However, on April 24, 1928, more than one year after the entry of the judgment, the plaintiff moved the trial court for an order modifying the decree of annulment and awarding the custody of the child to her. Over the defendant’s written and oral objection that it was without jurisdiction to entertain such a motion, the court modified that portion of the decree of annulment relative to the custody of the child, and awarded it to the plaintiff, with directions to the defendant to pay twenty dollars a month for thé support of the child. From the order of modification the defendant prosecutes this appeal.

In support of the trial court’s action the respondent points to section 138 of the Civil Code, which reads: “In actions for divorce the court may, during the pendency of the action, or at the final hearing or at any time thereafter during the minority of any of the children of the marriage, make such order for the custody, care, education, maintenance and support of such minor children as may seem necessary or proper, and may at any time modify or vacate the same.” Appellant contends that this section by its terms has application solely to “actions for divorce,” and that in the absence of a reservation in the decree of a right to modify the same, or of a statute giving such right, a trial court is powerless to change the custody of minor children awarded under a decree of annulment, after such decree has become final.

The annulment of a marriage does not affect the legitimacy of children conceived or born before the judgment (Civ. Code, sec. 84), and we cannot bring ourselves to the conclusion, suggested by the appellant’s contention, that the legislature intended that the custody of the children of an annulled marriage should be governed by a rule other or different than the rule applicable to the custody of children in ‘ ‘ actions for divorce. ’ ’ Section 138,