A husband instituted an action for divorce on the ground of cruel treatment, and asked for the custody of a female child, the issue of the marriage, who was seven years of age. In an answer in the nature of a cross-petition the wife denied the alleged ground of cruel treatment, and charged cruel treatment upon the part of the husband and his unfitness to have custody of the child, and prayed, among other things, for permanent alimony, temporary alimony, attorney’s fees, and that the custody of the child be awarded to the defendant. At an interlocutory hearing the judge awarded the custody of the child to her maternal grandparents, vvith the right of the father of the child to see her “at any reasonable time he may desire,” and ordered that the plaintiff pay to the defendant the sum of $40 as temporary alimony for the support of herself and said child pending the suit; and that the plaintiff pay to the defendant as attorney’s fees the sum of $25. Held:
1. Under the pleadings and conflicting evidence the judge was authorized to find that the defendant wife had sufficient cause for separating from the plaintiff; and consequently the awarding of temporary alimony and attorney’s fees was not erroneous, as contended, on the ground that the wife voluntarily left the home of plaintiff “without cause.”
2. It is provided in the Civil Code (1910), § 2971: “In all cases of divorce granted, the party not in default shall be entitled to the custody of the minor children of the marriage. The court, however, in the exercise of a sound discretion, may look into all the circumstances, and, after hearing both parties, make a different disposition of the children, withdrawing them from the custody of either or both parties, and placing them, if necessary, in possession of guardians appointed by the ordinary. The court may exercise a similar discretion pending the libel *80for divorce.” Held, that, under the pleadings and conflicting evidence as to the fitness of either the father or the mother to have custody of the child, the judge did not abuse his discretion in awarding such custody to the maternal grandparents of the child.
No. 4624. September 17, 1925. II. A. Allen, for plaintiff in error. B. P. Gambrell, contra.Judgment affirmed.
All the Justices concur.