Statement of the Case.

Plaintiff sued defendant, her husband, for separation from bed and board, and obtained judgment as prayed for, in March, 1916. Predicating her action on that judgment, and upon her allegation that no reconciliation had taken place, she brought this suit in September, 1917, for final divorce. The judge a quo found that the parties had, at various times and places, occupied towards each other the relations of husband and wife, and gave judgment rejecting plaintiff’s demands and awarding the custody of the children of the marriage, the minors, Lucille, Joseph, Benjamin, and Thomas, aged from 11 to 16 years, to defendant. Plaintiff has appealed from that judgment. Defendant answers the appeal, complaining that the trial court condemned him to pay the costs, and praying that its judgment be amended in that respect.

Opinion.

The evidence in support of the finding of the trial judge is abundant and conclusive, but we are not convinced that defendant should be awarded the custody of all the children. He is a colored pastor, who spends much of his time away from his home, which is in charge of his mother, who says that she is 100 years old, and protests vigorously, not to say violently, against having the children added to her responsibilities, for the reason, as she testifies, that she has done her share of that kind of work and can now do no more than take care of herself and her son, the pastor. It appears that, for ■ several years plaintiff has had charge of the girl and two of the boys, and that defendant, during that time (say 3 years), has contributed a maximum of §20 to the maintenance of that branch of his family. The eldest boy, however, who, judging from his age, may be useful, has lived with his father. We find nothing in the record which seems to call for any immediate change in that arrangement, and the judgment appealed from will be amended in so far as it directs a change, with a reservation for the future.

It is therefore ordered that the judgment appealed from be amended in so far as that the custody of the minor Lucille, and of the two younger of the minor boys is now awarded to the plaintiff, and the custody of the eldest of three boys is awarded to defendant, reserving to either party the right, after the expiration of 1 year from the date of this judgment, to apply to the district court for such change in the matter of the custody of the children as the circumstances may then warrant.

It is ordered that said judgment be further amended by condemning the plaintiff to pay one-half the costs of the district court, and, in all other respects, affirmed; the costs of the appeal also to. be paid by the litigants in the proportion of one-half by each.