Ostheimer v. Ostheimer

Weaver, J.

The parties were formerly husband and wife. In the year 1899 they were divorced at the suit of plaintiff. The defendant was at that time a farmer, with an estate of $3,000 or less, and the parties had two children of tender years. By the decree of divorce, plaintiff was awarded the custody of the children, and as alimony the sum of $900 in money, with some specific items of personal property, of small value. The present proceeding is instituted by plaintiff to obtain an increase of alimony, for the better support of the children. The trial court granted her petition, and adjudged that the defendant pay her for that purpose the sum of $5 per week until otherwise ordered. The defendant appeals.

1. divoece: ad-port of minor children. The power of the court to grant relief of this kind cannot be denied, so far, at least, as relates to the custody and maintenance of the children. Code, section 3180. And the question whether the circumstances shown in the testimony were such as to justify the judgment appealed from is purely one of fact. The original allowance to the plaintiff, we may assume, was fair and adequate, under the circumstances then existing; but if, owing to a change of conditions, the defendant is now more able, and the plaintiff is comparatively less able, to properly provide for their children, it is both humane and just that he be required to contribute further to that purpose. The decree which divorced him from his wife did not cancel his natural and legal obligations to his children. The evidence tends strongly to show that financially he is in fairly prosperous circumstances. At the time of the trial he was shown to be engaged in buying, selling, and fattening cattle and hogs in unusually large numbers; and, while like most men in that line of business, he appears» to be a large borrower and to be carrying a large aggregate of indebtedness, it is very clear that he has substantially increased his holdings, and is in much better condition to assist in the support of his children than he was at the date of the divorce. On the other hand, it is shown, without dispute, that the plaintiff is in straitened circumstances, and needs assistance to adequately supply the wants of the children. The allowance made by the trial court, while large enough to afford material aid in providing for the children, is no.t so large that a man of the circumstances and means the appellant is shown to possess need find it a burden.

2. Custody and support of children. The appellant, who is again married, suggests his willingness to take the children himself, and give them a home and parental care. Conceding the entire good faith of the offer, it cannot be held, as a matter of law or ... equity, that it must be accepted, upon peril of absolving the appellant from. his liability by a refusal. The court will not take these children from the mother, who has nurtured and cared for them, and transfer them to the custody of the father, in a home from which that mother is excluded, unless it be clearly' shown that their best interests will be promoted by the change. On this question the trial court heard the testimony of the parties and of neighbors familiar with the situation, and found that such a transfer of custody was not demanded. To the proper understanding of a controversy of this nature, the personal presence of the parties and their witnesses in court is of great importance, and we are slow to interfere unless the apparent weight and value of the testimony is so largely against the finding complained of that, in the interests of justice, a reversal is clearly. demanded.- Such is not the condition of the record here presented, and we are content to leave the judgment as it was entered below. We do this the more readily because' this judgment is not a finality, and the subject of the custody, care, and maintenance of the children is one over which the court will exercise a continiring guardianship, and all orders entered in respect thereto are subject to vacation or modification whenever by reason of changing circumstances the same shall appear to be equitable and just.

Upon the general proposition argued by counsel, as to the power of the court to grant new and additional alimony to a divorced wife after a final decree fixing the amount of such relief, we have to say that, whatever may be the extent of such power, the courts will be slow to exercise it, save in cases where, by reason of .changes which could not reasonably, have been anticipated in the relative circumstances of the'parties, the propriety and equity of the demand are established beyond reasonable' question. But the same reasons for hesitation and reluctance do not arise where the divorced wife is carrying the burden of the support of the children born of the marriage which has been dissolved. An allowance made against the former husband under such circumstances is not, strictly speaking, alimony to the wife, but a contribution to the support of the children — an obligation from which he has never been released.

We have not attempted any review of any cases cited from othér States, because, in view of our statute, they have no application here. None of our own cases decided since the statute was enacted is inconsistent with the conclusions indicated in this opinion.

The judgment of the district court is affirmed.