dissenting. It affirmatively appears from the record that the father’s cause of action for a divorce and his claim to the custody of the children were based upon allegations that the mother had been guilty of habitual intoxication. The final decree, which awarded the custody to the mother, raised a presumption that she was a fit and proper person to have custody of the children as of the date of the decree. If the *440father was entitled to have the judgment modified or vacated, it is incumbent upon him to affirmatively allege and prove that there had been a change of facts and circumstances materially affecting the welfare of the children since the date of the decree. There is no allegation in the petition to change the award that the drinking of intoxicating liquors by the mother was any different from what it was as of the date of the award. Nor is there any allegation that the interest and welfare of the children, in so far as the mother’s conduct is concerned, have been materially changed or affected since the date of the decree. In my opinion the petition was subject to the general demurrer and ground 2 of the special demurrer, and it was error for the court to overrule these demurrers.
I am authorized to say that Wyatt and Hawkins, JJ., concur in this dissent.