On the Merits.
MONROE, J.Plaintiff charges his wife with habitual intemperance, ill temper, abuse, desertion, and conduct so outrageous as to render their living together unsupportable, and prays to be awarded the custody of his minor children, and for a decree of separation from bed and board. Defendant excepted that the petition is too vague, and discloses no cause of action, which exceptions were overruled, whereupon she pleaded the general issue. There was judgment rejecting plaintiff’s demands, and awarding the custody of the children to the defendant. The plaintiff has appealed.
The evidence shows that the litigants were married in 1895, and, after living for a while at the home of plaintiff’s parents (or mother), kept house first on Miro and then on Broad street; that in January, 1902, plaintiff left his wife at the Broad street residence, taking with him their two children (little girls, the eldest of whom was about seven years old at the time of the trial), and returned to his mother’s house; and that the defendant went out to work. The plaintiff attempted to prove habitual intemperance and abuse, but, although we have not had the advantages of seeing or hearing the witnesses, our reading of their testimony as it appears in the transcript (but which it would serve no useful purposes to recapitulate) leads us to the conclusion, reached by the trial judge, that it does not entitle the plaintiff to the judgment prayed for. We are, however, of opinion that the judgment, as rendered, goes too far in awarding the custody of the children to the defendant. She does not pray that they be awarded to her, and, as appears from the testimony'adduced in her behalf, she is not in a position to take care of them, since she is engaged in doing housework and caring for the children of a family by whom she is employed for' that service. Upon the other hand, her children are living with their father, at the house of the’latter’s mother, and have been so living since the separation of their parents, and there is no suggestion in the record that the defendant, who is allowed to see them, has ever objected, or now objects, to that arrangement. Nor is it suggested that the father is disqualified from retaining the children in his custody by reason of his conduct or character. On the contrary, the evidence shows him to be a man of good character, and we are of opinion, upon the whole, that the custody of the children should be awarded to him, subject to such further action in the matter as the future may require.
It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled and reversed in so far as it awards the custody of the children to the defendant, and it is further adjudged and decreed that, subject to such further action as the *707future may require, the custody of the minor children of the litigants be awarded to the plaintiff, reserving to the defendant the right to see them as that right is now enjoyed, or as may hereafter be determined by the court. It is further ordered, adjudged, and decreed that in all other respects said judgment be affirmed; the defendant and appellee to pay all costs.