Murray v. Murray

Pattison, J., delivered the opinion of the Court. There are two appeals in the record before us. Helen Murray, the appellee in the first of these appeals, filed her bill against the appellant George Wallace Murray on May the sixth, 1915, ashing for a divorce a Mensa et thoro and for the custody of their infant son at that time twenty-two months old. The defendant filed his answer thereto denying the allegations of the bill upon which the relief was sought, and issue was joined thereon.

The Court after hearing evidence upon the issue so framed passed its decree on September 28th, 1915, dismissing the bill, except as to the custody of the infant child. By the decree so passed it was “Adjudged, ordered and decreed that the said bill of complaint, except as to the care and custody of the infant child of the parties hereto, be and the same is hereby dismissed; the costs to be paid by the defendant. And it is further adjudged, ordered and .decreed that jurisdiction is hereby retained by this Court over the care, custody and maintenance of the infant child of the parties hereto, Douglas Williamson Murray; and the custody of said infant is hereby awarded to the plaintiff in this cause until the further order of this Court; provided always that the defendant herein shall have the right to visit the said infant, and to have custody of the said infant during the afternoons of all Sundays, and the afternoons of all business holidays in each year; and in addition thereto on the afternoon of one business day in each month; provided on said last named occasions reasonable notice shall first be given by said defendant to said plaintiff of his intention to call for said infant. And it is further adjudged, ordered and decreed, with the consent and approval of ⁶⁵⁵ said defendant, that he shall pay to the plaintiff the sum of Ten Dollars ($10.00) per month for the support and maintenance of said infant, until the further order of this Court.” The plaintiff, at the date of the passage of the decree, was living with her parents, apart from her husband.

The child, at such time, was in her custody where it has ever since remained; and during which time the defendant has exercised the right and privilege of visiting his son, given to him by said decree. As shown by the docket entries found in the record Mr. Murray on the 18th day of December, 1917, filed a petition in said cause asking* for a, modification of the original decree in respect to the “care, custody and schooling of the child.” The petition was answered by Mis. Murray and upon hearing it was dismissed by the Court, to whom application was made. On the 14th of February, 1919, Mr. Murray again filed a petition again asking for a modification of the original decree of September 28th, 1915, to the extent of permitting him to have the custody of the child “each week from and during Saturday afternoon and until Monday at eight o’clock A. M., during all business holidays and for during one business day in each month, provided your petitioner shall so desire, and provided further that he shall give reasonable notice of such desire to the said Helen Murray; and your petitioner further prays that the plans for the religious and secular education of the said Douglas Williamson Murray shall he made by your petitioner after consultation with the said Helen Murray, your petitioner to have the deciding voice with reference to said questions.” The Court upon the petition and answer filed, thereto, and upon evidence offered by both the petitioner and respondent, on March 28th, 1919, passed the following order: ⁶⁵⁶ “Ordered that the decree passed in. this case on the 28th day of September, 1915, be and the same is hereby modified in relation to the custody of said Douglas Williamson Murray to this effect, to wit, that jurisdiction is hereby retained by this Court over the care, custody and maintenance of said Douglas Williamson Murray, and the custody of said Douglas shall remain with the plaintiff in this case until the further order of this Court, provided always that the defendant herein shall have the right to visit said Douglas and to have the custody of him during the afternoon of all business holidays in each year; and 'in