
    CUSTODY OF CHILDREN IN DIVORCE PROCEEDINGS.
    [Circuit Court of Hamilton County.]
    Graviess v. Graviess.
    Decided, November 15, 1905.
    
      Divorce — Custody of Children — Material Advantages not Controlling-Discretion of Court With Reference Thereto — Attitude of Reviewing Court as to — Continuing Jurisdiction of Trial Court.
    
    1. The continuing jurisdiction which is vested in the court of common pleas with reference to the custody of children for the purpose of modifying orders in divorce proceedings does not authorize a re-hearing of a matter theretofore submitted and determined, but is only to be called into exercise when a substantial change in the condition of the parties requires a modification of the former order.
    2. The discretion vested in a trial court with reference to the custody of children will not be inquired into by a reviewing court, except on a charge of abuse of discretion or that a grave mistake has been made.
    3. The afflueBTce of relatives who owe the children no duty is not controlling as against the care and interest of their mother.
    Jelke, P. J.; Swing, J., and Gieebn, J., concur.
   Tbis is a proceeding in error prosecuted to -an order of the court of common pleas, made January 17, 1905, modifying a former decree of that court as to the custody of children.

On November 26, 1901, the court of common pleas decreed a divorce between George F. Graviess and1 Elizabeth Graviess for the aggression of the husband, and in that decree confided the care, custody, education and control of the children, Helen, Alice and Edna, to the wife. In violation of this order said George F. Graviess took the children out of the jurisdiction of the court but soon thereafter returned the child, Helen, to its mother. In January, 1905, said George F. Graviess having returned to and within the jurisdiction of said court of common pleas, was brought before that tribunal for contempt, and fined and punished therefor; and the matter of the custody and care of the minor children came on for consideration under a motion to modify the former decree. It is error to the order made upon this motion that is under consideration here, and the chief ground of error alleged is that said order 'and decree, is contrary to and against the weight of the evidence introduced at this latter hearing.

E. T. Brown, for plaintiff in error.

E, Mt Bcflflyrdi, pojitra,

The care and custody of children in divorce proceedings is a continuing matter in the trial court, and one which addresses itself to the sound discretion of that court. When that discretion is exercised, a reviewing court is very loath to disturb or interfere with any order. It is said that such order will only be inquired into on a charge of abuse of discretion. While we do not like to say in this case that the discretion vested in the trial court has been abused, we are impressed by the record that a grave mistake has been made. The continuing jurisdiction of a court of common pleas in the matter of the custody of children, does not mean that that court may change its former orders and decrees at any time because the court may have changed its mind. This continuing jurisdiction to modify former orders'is not to be used for the purpose of a re-hearing of the matter theretofore submitted and adjudicated, but is only to be called into exercise when a substantial change has taken place in the condition of the parties, which would call for and require a modification of the former order. See case of Pfau v. Pfau, 8th C. C., page 87; opinion per Smith,. J., of this court.

Again, at this latter hearing, it seems to1 us that an undue and exaggerated consideration was' given to the wealth and affluence of the married sister of the said George F. Nraviess. The mere fact that through the prosperity of relatives and connections, who owed the said George F. Graviess no duty, and absolutely no duty to these minor children, superior advantages could be afforded them, furnishes little or no reason for taking them away from the mother to whose care they had been confided. Of course material advantages may be somewhat considered, but they are not controlling, and the mother’s care and influence in this case, we think, should have outweighed them.

We are therefore of the opinion that the order of January 17, 1905, should be reversed, and this cause remanded to the court of common pleas for further examination and consideration.  