Reversing.
At the June, term, 1925, of the Whitley circuit court, a judgment was entered divorcing appellee, Edgar Hays, and appellant, Nellie Hays. By that judgment the custody of their infant daughter, Edna C. Hays, was awarded to appellee, and the custody of their infant son, John T. Hays, was awarded to appellant. On the 10th day of October, 1925, appellee notified appellant that on October 14th he would enter a motion to redocket the cause and move the court to award to him the custody of the child formerly awarded to her. On the day specified in the notice the motions were made. The chancellor *Page 285 sustained the motion to redocket the cause and set the trial of the issues raised by the motion and response ahead to October 31, 1925. In the meanwhile both appellant and appellee took the depositions of several witnesses to sustain the issues between them raised by the pending motion and response, which were filed prior to the date set for the hearing. On the 31st of October, 1925, appellee filed an additional motion, without previous notice to appellant, in which he asked, in case the chancellor should conclude that neither he nor appellant was a suitable person to have the custody of the infant in question, that its custody be awarded to his brother, T.F. Hays, and, over appellant's objection, in support of that motion, filed his own and the affidavits of T.F. and Cora Hays. The chancellor then proceeded with the trial of the issues involved and concluded that neither appellant nor appellee was a suitable person to have the custody of the infant in question and awarded his custody to T.F. Hays. Appellant prosecutes the appeal from that judgment.
The appeal represents primarily a question of practice and procedure. Section 2123, Kentucky Statutes, provides that on final judgment in a divorce action the court may make orders for the care, custody and maintenance of the minor children of the parties, with the further provision that it may "at any time afterward, upon the petition of either parent, revise and alter the same, having in all such cases of care and custody the interest and welfare of the children principally in view." The practice seems to be generally established that a motion for a change of the judgment awarding the custody of infant children, where the cause has been retained on the docket, may be treated as the petition for same, and that a motion to redocket and for a change of custody in case the cause has been stricken from the docket may likewise be so treated. To be sufficient the petition or motion treated as the petition undoubtedly should state facts sufficient to constitute grounds authorizing the chancellor to grant the relief sought; and the issue is made by answer filed by the person from whom the custody of the infant is sought to be taken, or by response to the motion, which of necessity must be sufficient to put in issue the grounds pleaded, as cause for changing the judgment.
It is extremely doubtful if the written motion filed by appellee herein, which was properly treated as his petition under the statute, supra, for revising the judgment *Page 286 as to the custody of the infant child previously entered, stated facts constituting sufficient grounds therefor. However, we deem it unnecessary to determine that question. Appellant responded and the parties seem to have understood and to have taken their evidence with reference to the issue made by the motion and response, that is, whether he or she should have the custody of the child in question, the interest and welfare of the child being principally in view. The motion which was filed raised that issue alone, because by it appellee sought to have the custody of the child in question taken from appellant and awarded to him. When the motion and response had been filed, as was proper, the trial of the issue so formed was set forward so that the parties might take their proof. The proof taken was directed solely to the question whether the welfare of the infant, John T. Hays, would best be served by taking him from the custody of appellant, his mother, and placing him in the custody of his father, appellee. On the day of the issues thus formed and toward which the proof for the parties taken by deposition was directed, over appellant's objection, appellee entered motion, in the event the court concluded from the evidence taken that neither of them was a suitable person to have the custody of the child, to award him to the custody of appellee's brother, T.F. Hays, and over the objection of appellant filed his own and the affidavits of his brother and his brother's wife. The chancellor then tried and determined the cause on the motions pending and awarded the custody of the child to appellee's brother.
This court's consideration of the question has led to the conclusion that on the issue made by the motion and response herein, in view of the statute, supra, the chancellor was authorized to determine only the question whether the interest and welfare of the infant, John T. Hays, would best be served by leaving him in the custody of his mother, as adjudged by previous judgment, or by placing, him in the custody of his father. The affidavits which were filed and considered by the chancellor as evidence herein, over the objection of appellant, should not have been considered. It is certainly true in a proceeding of this character that either party should have the right to cross-examine witnesses whose testimony is offered to be heard. That right is denied when affidavits are permitted to be read in evidence. The effort to enlarge the issues of the proceeding at the time when it *Page 287 was submitted for trial by the motion then filed to award the child's custody to a stranger to the proceeding deprived appellant of her right to produce evidence on that issue. The proceeding should have been confined to the issue made by the motion and response.
Careful consideration of the evidence taken upon the issues presented by the motion and response herein has led to the conclusion that, as between appellant and appellee, the former should have the custody of her infant son, John T. Hays, and we have concluded that his interest and welfare will best be served thereby. It would serve no good purpose to detail the evidence introduced herein tending to establish the fitness and unfitness of the respective parties for the custody of their child.
For the reasons indicated the judgment herein is reversed and the cause remanded for judgment in conformity herewith.
Whole court sitting.