
    Mutchler v. Mutchler
    
      Russell L. Mervine, for libellant.
    September 10, 1945.
   Davis, P. J.,

This matter is before the court upon report of the master recommending that a divorce a vinculo matrimonii be granted and that the custody of a minor child of the said parties be awarded to libellant, Esther Eloise Mutchler.

From the record it appears that the libel filed in said case makes no reference to the matter of custody of the said minor child. Respondent did not appear in person or by counsel. At the hearing before the master certain testimony was taken relative to the matter of custody of the said child. The testimony discloses that at the time of the master’s hearing the child was residing with the mother and father of libellant, in Pike County, Pennsylvania. The notice of the master’s intention to file his report, service of which was accepted by respondent, discloses that a recommendation relative to the custody of the child would be made, but it does not disclose the nature thereof. It, therefore, appears that until such time as respondent received the master’s notice of his intention to file his report there was nothing in the pleadings that would put the respondent on notice that the matter of custody of the child would be considered.

It is not a general practice in this court to determine custody of children in a divorce proceeding. The court feels that if the matter of custody is to be raised in a divorce proceeding, the pleadings should raise the question in a manner that will give respondent notice of the matters involved in the case.

Therefore, in this case, and without passing upon the question generally, as to whether or not the determination of custody of children can properly be made in a divorce action in this state, the recommendation of the master that the custody of Joan Marie Mutchler, a minor child of said parties be awarded to the mother, Esther Eloise Mutchler, is overruled and no decree entered as to the custody of said child.

After careful examination of the evidence taken in this case before the master, the following decree is entered:

And now, September 10, 1945, the court having heard this case, and having fully considered and proceeded to determine the same as to law and justice appertain, do sentence and decree that Esther Eloise Mutchler be divorced and separated from the nuptial ties and bonds of matrimony heretofore contracted between her, the said Esther Eloise Mutchler, libellant, and the said Robert E. Mutchler, respondent; and that thereupon all and every the duties, rights and claims accruing to either the said Esther Eloise Mutchler or the said Robert E. Mutchler, at any time heretofore in pursuance of said marriage, shall cease and determine, and the said Esther Eloise Mutchler and Robert E. Mutchler, shall severally be at liberty to marry again in like manner as if they had never been married; and further, the court do award to the said Esther Eloise Mutchler against the said Robert E. Mutchler her cost in this behalf expanded. •  