Neil v. Neil

COSHOW, J. The court retains jurisdiction of a suit involving the custody of minors. In a sense a decree or order of court awarding the custody and maintenance of minors is never final. It is subject to change to suit the changing conditions and require [65] ments of the minor and of the custodian: Section 514, Or. L., as amended by Chapter 114, Laws of 1921; Jolliffe v. Jolliffe, 107 Or. 33 (213 Pac. 415; Hertzen v. Hertzen, 104 Or. 423 (208 Pac. 580); Mack v. Mack, 91 Or. 514 (179 Pac. 557); Gibbons v. Gibbons, 75 Or. 500 (147 Pac. 530). While the affidavit of the plaintiff supporting her motion for a modification of the original order is not as specific as it probably ought to be, yet there is sufficient therein to warrant the court to make the modification. The decree of divorce awarding the custody of the. minor did not release the defendant from Ms natural obligation to support his child. The affidavit states directly that the plaintiff had ascertained that the allowance of $15 was not sufficient to support the cMld; that plaintiff was ill and therefore unable to earn sufficient to support herself and the child. The sum of $20 is a reasonable sum and apparently not beyond the ability of the defendant to pay. The court did not abuse his discretion by allowing the motion. That part of the order providing for the increase in the allowance in case of a change of residence by the plaintiff is improper. The court should not attempt to anticipate the changing conditions and contingencies in awarding the custody of minors and providing for their maintenance. Decrees making such awards are always subject to modification and it is impossible for a court to provide in advance for changes that may occur. The welfare of the child is the prime consideration in all such matters. Modification of a decree awarding the care, control and custody, and providing for the maintenance of children should not be made except upon a proper show [66] ing at the time the modification is prayed for: 9 R. C. L. 476, § 291. For these reasons the decree of the Circuit Court will he modified by eliminating therefrom the provisos set out in the statement of this opinion and affirmed in all other respects. The defendant, who is appellant here, will pay the costs and disbursements in this court. Modified. McBride, C. J., and Burnett and Band, JJ., concur.