Black v. Black

LORIGAN, J.

In this action, which was for a divorce, the parties having entered into an agreement to that effect, the court in its original decree in favor of plaintiff, entered in March, 1900, awarded the custody and control of the minor son of the parties to the defendant, with leave to plaintiff

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to visit said child at reasonable times and to have the child visit at her home six months in the year. In February, 1903, the court, on application of plaintiff for a modification of said original decree so as to award the custody and control of said child to her, and after hearing, at which evidence was presented on both sides, modified said decree and awarded the care, education, and control of said child (then seven years of age) to plaintiff, with leave to defendant to visit the child at reasonable times and to have him spend his vacations with him. It is from this modified decree that this appeal is taken.

While it is insisted that the modification of the decree was not justified by the evidence, we do not think the point calls for any special notice, or that it is necessary to review the evidence presented in the bill of exceptions. All applications of the character here involved are addressed to the sound discretion of the lower court, and the conclusion it reaches will not be disturbed unless the record presents a clear abuse of that discretion. We perceive no such abuse. There was no question raised as to the morals of either parent; in fact, it was conceded that they were both persons of moral worth. But, upon all other matters affecting the best interests of the child, particularly as to its physical necessities and comforts and the ability of either parent to best provide for them, the evidence which was presented, solely upon affidavits, was radically conflicting. If that presented on behalf of the mother was accepted by the lower court, and it undoubtedly was, that tribunal, having in view the welfare of the child as the controlling factor in directing its custody, was warranted in making the order and we may not disturb it.

It is also insisted by appellant that the provision in the original decree awarding the custody of the child to defendant, being made in pursuance of a stipulation of the parties in the nature of a contract, the court had no power, upon application of the plaintiff, to modify it, and refers to