ON PETITION FOR REHEARING
Jasper, J.Appellant, in his petition for rehearing, has requested this court to clarify its opinion by inserting additional facts alleged in his plea in abatement, which are, in substance, as follows:
That in compliance with the order of the Decatur Circuit Court, the court in which the divorce was granted, and the order to make weekly payments was made, he had paid to the Clerk of the Decatur Circuit Court, pursuant to that order, the sum of $4,241.70; that he made a payment on August 2, 1950, prior to the filing of the criminal affidavit on August 10, 1950, and thereafter continued to make payments as shown by the supplemental plea in abatement; that appellant’s sole property, including that of his wife, consisted of household and kitchen furniture, subject to a mortgage in favor of a finance company for $187, and his only income was from his labor, which gave him a take-home check of $37.13 each week; that he did not wilfully neglect or refuse to comply with the court’s order to the best of his ability.
The plea and supplemental plea in abatement did not allege facts sufficient to abate the action, and, at most they were facts in bar to be considered by the court at the time of trial.
The offense charged was in the language of the statute. Appellant was charged with wilfully neglecting and refusing to provide for his minor children. The plea and supplemental plea in abatement show *460on their face that appellant was not complying with the order of the court. As heretofore said, these were matters in defense and not in abatement. If appellant had fully paid the support, as ordered in the Decatur Circuit Court, it would have been a good defense in the Rush Circuit Court. The Decatur Circuit Court still retains jurisdiction to change or modify the custody and support order.
Appellant, in his brief on petition for rehearing, contends that he is ordered now to make two payments of $18 per week,1 or a total of $36 per week, for the support of his minor children. With this we do not agree. Appellant is required by the court, as a condition of his probation, to pay $18 per week for the support of the minor children. Upon proper showing to the Decatur Circuit Court, the payment made to the Rush Circuit Court should be credited on the support payment as ordered by the Decatur Circuit Court.
Appellant further contends in his petition for rehearing that the case of Manners v. State (1936), 210 Ind. 648, 5 N. E. 2d 300, criticized and overruled the case of State v. Yocum (1914), 182 Ind. 478, 106 N. E. 705. With this we do not agree. The first-cited case was an appeal from a conviction based on an indictment under §10-1401, Burns’ 1942 Replacement. The case was reversed for failure to prove desertion, or that the children were left without reasonable means of support and continuing support, or a charge upon any county or township in this state. The court, in the Manners Case, discussing in part the Yocum Case, said (p. 652 of 210 Ind., p. 302 of 5 N. E. 2d):
“The case should not be considered as authority, at least, in cases where there is a controversy as to whether the husband is complying with the *461order of the divorce court in respect to the support of the children, and where it does not appear that the children are not being supported.”
The Manners Case neither criticized nor overruled the questions of jurisdiction and venue as decided in State v. Yocum, supra.
After considering all of appellant’s contentions, he has not convinced us that we have erred in our decision in this case, and his petition for rehearing is therefore denied.
Note.—Reported in 104 N. E. 2d 742.
See Spade v. State (1909), 44 Ind. App. 529, 89 N. E. 604.