Anderson v. Anderson

BARNARD, P. J. On August 12, 1948, the plaintiff secured an interlocutory decree of divorce on the ground of extreme cruelty. The defendant had defaulted and the decree, among other things, gave the plaintiff the care, custody and control of the couple’s daughter, then 2 years old. A final decree was entered on August 26, 1949, containing the same provision by reference.

On February 28, 1951, the appellant filed an affidavit in support of his motion for a modification of the custody provision, and asked that custody be given to him, alleging unfitness on the part of the plaintiff.

The matter was heard on March 20, 1951. The plaintiff presented the affidavits of six persons, including her own. The court heard oral testimony, the defendant and four witnesses testifying in his behalf and the plaintiff testifying in her behalf. The court then gave the parties time in which to file further affidavits. On March 23, the plaintiff filed affidavits by five other persons. Oh March 30, the defendant filed six affidavits, including that of one person who had given oral testimony. On April 4, the plaintiff filed an answering affidavit. Thereafter, the court found that the plaintiff is a fit and proper person to retain such custody; that the interests of the child would be best subserved by not modifying the previous order; that no cause exists for such a modification; and that it would be detrimental to the welfare of the child to presently modify the custody provision. An order was made denying the modification requested, discharging the order to show cause, and ordering that the custody remain in the plaintiff. The defendant has appealed from this order.

The appellant first contends that the court erred in refusing to admit evidence as to conditions existing at the time of the divorce decree. In this connection, appellant had offered in evidence “a transcript of the evidence heard in the divorce action,” for the purpose of showing “the grounds upon which the court granted the divorce.” This offer of evidence was denied. It is argued that “the original agreement for custody was made without advice of counsel”; that the proffered evidence was necessary in order to show a change in circumstances and to enable the court to [865]“evaluate the relative conditions of the parties”; and that the rejection of this evidence deprived the appellant of an important element of his proof. The reason for granting the divorce to the respondent was immaterial except as it may have been adverse to the appellant, no offer of proof was made, and nothing was said which would indicate that the transcript contained any evidence material to the motion before the court. Neither error nor prejudice is disclosed by the record.