The Mankato free press. [volume] (Mankato, Blue Earth County, Minn.) 1879-1924, 1922-07-28
OPINION OF HIGH
TRIBUNAL IS GIVEN
DECISION HANDED DOWN
IN EBERHART CASE
QUINN WROTE DECREE

Story of Domestic Drama Tha:
Has Covered Period of
Several Years
Walter Warren Eberhart, aged
about six years goes back to his
mother, Cora r. Eberhart, on ar
order issued by the Minnesota state
supreme court. The higher court
declares further that if the father
of the child. Walter w. Eberhart
shall pay ACQUIRED support money tc
Cora R. Eberhart, the child must
be returned to this state. The child
is now in Florida with its mother.
The decision of the Blue Earth
county court was reversed in the
case of Cora r. Eberhart. appellant
against Walter w. Eberhart
The syllabus in the decision OF
the supreme court is as follows:
One. Where a motion is submit
ted on affidavits asking for the Gus
tody of a minor child, and fixing an
amount for its support the parents
living apart, under a decree of sep
aration, it is error to relieve the de-
PENDANT from the payment OF &C"
crude support money and to dismiss
action.
Two. Plaintiff having removed
the child from the jurisdiction Of
the court defendant should be re-
lieved from contributing to its sup
port, so long as it is kept without
the state.
Three. Should defendant make
payment of all accrued support mo
ney, the child should be returned to
the state, where the defendant may
have opportunity of visitation as
provided by the former decree OF the
court, custody to remain with the
plaintiff until further order OF the
court
Reversed with directions.
Opinion of Higher Court
The opinion of the court follows:
A former appeal is reported in
149 Minnesota 1872.
The judgment there under review
was modified so as to award the
custody of the child to the plaintiff
under such regulations for visiting
by the father and with such allow :
ance for support as the trial court
should order. When the case went
down the trial court amended its
Judgment by giving the custody OF
the child to the defendant by re-
lieving him from payment Of furth-
er support money to the plaintif
whether accrued or unaccrued; and
finally by providing that the com
plant and action of the plaintiff be-
and hereby is dismissed"
The hearing below was a recon :
sideration upon affidavits of the
merits of the case and resulted IN
the dismissal of the plaintiffs cause
of action. This is not permissible
practice. The original judgment
awarding custody and giving sup
port money, was authorized when
the plaintiff failed to prove a
ground for divorce. Jacobs VS. JAG
obs, 1876 Minnesota 100. Whether
the court could altogether relieve
the defendant of accrued support
money we need not inquire. Such
relief was granted, but under very
exceptional circumstances, in HART
gan VS.. Hartigan 145 Minnesota, q
Child out Of Court Jurisdiction
The plaintiff has taken the child
from the jurisdiction of the cour.
So long as she keeps him without
the jurisdiction, the defendant
should be relieved from the pay
ment of support money to accrue IN
the future and that already accrued
should not, be enforced against him
The judgment is reversed and the
court below is directed to enter
judgment that the defendant be re.
lieveo from payment of support
the judgment from which this ap-
peal is taken, until the child is re-
turned to this state. at which time
the payments heretofore, ordered
for his support shall continue until
otherwise ordered by the court, and
relieving him, until such child Is
returned to this Jurisdiction, from
accrued installments of suppor1
money.
Should defendant choose to re-
lieve himself of default the chilt
should be returned to this state
where the defendant may have op
portnnity of visitation as provided
by the former decree, custody still
to remain with the plaintiff as order.
ed in said decree until the further
order of the court.
Reversed with dfrections-Quinr
judge.
Story Of Domestic Drama
The Eberharts were married II
this city during the year 1915 ant
the child IN question, Walter War
rem Eberhart, was born to then
May 81, 1916. The couple lived to,
gether until May 4, 1918, at which
time the plaintiff, Mrs. Eberhart
left her husband claiming cruel ant
inhuman treatment. During the
month of May 1918 Mrs. Eberhart
brought an action against W. w
Eberhart for an absolute divorce
While this. action was pending
there arose between the parents {
controversy as to the custody of the
child. Later a restraining order was
made restraining the father from
interfering with the mothers Gus
tody of the boy, while the divorce
action was pending. -, .
In the fall of 1918 the mother o.
the lad decided to visit her parents
who live in Florida, and the fathel
of Walter Warren made application
TO the court for a restraining ordel
10 prevent Mrs. Ebcrhart from TAX
ing the child out of the state o.
Minnesota. The court required the
mother to furnish a bond for the
return of the child to this state a
the time of the trial of the divorce
This she did and returned with the
boy later on. Soon after startins
this action for divorce. Mrs Eber