Luthe v. Luthe

Mr. Justice Elliott delivered the opinion of the court. Of thé four children of plaintiff and defendant, three were girls, two of them of very tender age. The plaintiff, after the separation, voluntarily left these children with defendant for about a year and a half before the commencement of this suit. He did not, by his replication, resist the prayer of defendant’s cross-complaint for the custody of the children. On the first trial plaintiff testified as follows: “ She [defendant] is a good nurse to the children. She is devoted to them when they are sick. A better person than she cannot be found to take care of them. I have only this fault to find: that she alienates the affections of the children from me, and makes me contemptible by the language she uses to them of me. I will say this: If it is intended to be asked if I will be satisfied for her to have the custody of the children, I will say, ‘Tes,’with this exception: Until the status of defendant changes by marriage or something of that kind, if there should be a divorce, with the privilege of visiting them, and of having them visit me; not only for a short time, but one at a time or two at a time, for a period of three or four days, if I desire; then'to be returned. I want the privilege of remaining by their side whenever they are sick.” The original decree gave the custody of the children to the mother, and plaintiff took no excep — 425 — tions thereto. From these circumstances the conclusion is almost irresistible that defendant was a proper person to have the care and custody of her children. On the second trial a large number of witnesses testified to the industrious habits of the mother, and to her proper management of her household and of her children. The custody of these children being awarded to defendant, the use of all the estate of both plaintiff and defendant, joint and several, real and personal, was not too much to give to defendant for alimony and maintenance during their minority. The family residence was the only productive property, as plaintiff himself alleged. Indeed, there was little property other than this belonging to plaintiff, except his law library and office furniture. An undivided half interest in the family residence belonged to defendant in her own right. Giving her full possession of the whole, with all the furniture, and requiring defendant to pay taxes, insurance, and interest on the mortgage, and still his family was but scantily provided for. When the divorce was granted, plaintiff was free —not incumbered with any family. He was in the prime of life, and had a good profession, in which he had been quite successful. Thereafter, in the race of life, without any capital but his library and his talents, his condition and circumstances were decidedly advantageous in comparison with those of defendant, intrusted with the care of four small children. Without the aid of statute a court of equity will generally decree that the wife as well as the children shall be provided with the necessities of life out of the husband and father’s estate, as far as possible, unless her misconduct has been very gross; and the fact that the divorce was granted for her fault certainly will not deprive her of all relief, where she is still deemed worthy to be intrusted with the custody of the children. 2 Bish. Mar. & Div. sec. 811 et seq., and notes. Fortunately, the construction given to the statute law of this state by the state of Illinois, from which it was borrowed, — 426 — is in harmony with this humane doctrine of equity. Reavis v. Reavis, 1 Scam. 242; Deenis v. Deenis, 79 Ill. 74. As we have said before, the plaintiff was apparently satisfied with the original decree. At that time no objection or question was raised as to the propriety of the defendant continuing to have the household furniture as well as the rental of the house. The second or amended decree, after a full hearing, continued the mother as custodian of the children, and as to allowances for alimony and maintenance was somewhat more favorable to defendant than the original decree. The original decree was uncertain in its meaning, and unfortunately the amended decree is not altogether free from ambiguity. The evidence given on both trials being before us, we are at liberty to judge for ourselves as to what would be equitable in the matter of alimony and maintenance, having due regard for the interests and feelings of the parties plaintiff and defendant and the best interests of the children. Still we must bear in mind that the parties and their witnesses appeared twice before the court below, and that the judgment of the trial court is entitled to great consideration in reference to the custody of minor children and the amount to be allowed for alimony and maintenance. Powell v. Powell, 53 Ind. 513. As a rule we do not undertake to direct the entry of judgments in matters of form; but in this case, that there may be a speedy end of this litigation, wo will direct the entry of a modified decree by the county court to the following effect: “It is now ordered, adjudged and decreed by the court that the defendant, Marion A. Luthe, shall, until further order of the court, retain the custody and control of the said children of the parties hereto during their minority, to support, care for and educate them to the best advantage the condition and circumstances of the plaintiff and defendant will allow. That for this purpose defendant shall have the possession of lot 25 and south — 427 — half of lot 26, block 150, Adae’s addition to the city of Denver, Arapahoe county and state of Colorado, and the improvements thereon, to hold, occupy and enjoy the same, together with the issues, rents and profits thereof, without let, hinderance or interference in any manner on the part of plaintiff. That plaintiff shall keep the dwelling-house situate on said premises well insured at his own expense in some fire insurance company of good repute for financial responsibility. He shall pay the taxes thereon, and shall keep the interest paid up on the incumbrance of $3,800 on said premises. And, further, plaintiff shall pay or cause to be paid to defendant within sixty days from the entry of this modified decree the sum of $260 on account of the furniture taken by him from said defendant; and plaintiff shall also pay or cause to be paid to the defendant, on or before the 15th day of December of each and every year, the sum of $50 for herself and the sum of $25 on account of each of said minor children then remaining in her custody and control as aforesaid. In case the plaintiff shall fail at any time to pay to defendant any of the sums of money hereinbefore specified, or any part thereof, when the same shall become due and payable, the amount so remaining unpaid shall constitute a lien in favor of defendant against plaintiff’s undivided half interest in said lot 25 and south half of lot 26 aforesaid, and the same may be foreclosed by proper civil action. Defendant may also at any time have execution, garnishment or other proper proceedings against plaintiff for any such sum or sums of money, or any part thereof, remaining due and unpaid according to the terms of this decree. In case the plaintiff shall fail to keep said dwelling-house insured as aforesaid, and any loss shall thereby befall said estate, such loss shall be a lien against his interest in said premises and in favor of the defendant, and* the amount of said lien may be established by a proper civil action and foreclosed accordingly. If plaintiff shall suffer said premises, or any part thereof, to be sold — 428 — for taxes or for default in payment of said incumbrance of $3,800, or any part thereof, or any interest thereon, the loss or sacrifice on account of such sale or sales shall, as between the parties hereto, be borne wholly by the said plaintiff; and the defendant may become the purchaser at such sale or sales, or may redeem or repurchase said premises, or any part thereof, from such sale or sales for the benefit of her individual or separate estate, the same as though she were not a tenant in common with plaintiff. The plaintiff may renew said incumbrance from time to time as may be necessary, but not for a greater sum than $3,800, nor at a rate of interest greater than ten per cent, per annum; and defendant shall join in the execution of any necessary securities therefor; and plaintiff shall not in any manner interfere with defendant’s enjoyment of said premises, or any part thereof, for the purposes aforesaid until the further order of the court. If plaintiff shall faithfully perform the matters required of him by this decree while said defendant shall have the custody of said children as aforesaid, his undivided half interest in said premises shall not be deemed to be otherwise affected hereby, and the same shall be preserved for his ultimate use and enjoyment; provided, nevertheless, that if plaintiff shall elect so to do, he may convey to defendant by good and sufficient warranty deed, subject only to the incumbrance and liens hereinbefore mentioned, all his right, title and interest in and to the premises above described, so that defendant shall become the absolute owner of the whole thereof, subject only to said liens and incumbrance, with full authority to use, sell, convey, lease or incumber the same as she shall deem for the best interests of herself and said minor children; and upon the execution and delivery of the conveyance aforesaid within twenty days from the entering of this decree plaintiff shall be and stand relieved from each and every of the commands, directions and requirements hereinbefore expressed touching the payment of interest, insur — 429 — anee, taxes and other allowances on account of alimony and maintenance for said defendant, remaining subject only to such obligations as may thereafter be devolved upon him in respect to his surviving children during their minority, in case of necessity or of a substantial change in the condition or circumstances of the parties hereto. This decree shall stand in lieu of all former decrees as to the custody of the children, use of realty, recovery of pei’sonalty and alimony and maintenance for defendant and said children. The former decrees of this court in reference to visits to and by the children, and the conduct of the parents in their intercourse with the children, shall he and remain in full force and effect, and shall be enforced by the court when either party shall upon proper notice to the other show that there has been a violation thereof. This decree may be further modified by the court upon due notice to the parties and opportunity to be heard, as the condition or circumstances of the parties may change, or as the best interests of the children may require. ” Having determined that the foregoing is, under all the circumstances of the case, a proper provision to make considering the condition of the parties as disclosed by the record, the judgment of the county court is reversed and the cause remanded, with direction to that court to enter judgment in accordance with this opinion. The costs of this case in the county court, as well as in this court, will be taxed against the appellant. Judgment reversed. Reversed. 1. Practice in Supreme Court — Appeal.— An appeal must be prosecuted and determined on the record. It is in no sense a trial de novo, and additional averments or evidence cannot be considered, much less additional matters sought to be introduced, by ex parte affidavits. Helm, 0. J., not sitting.