Hines v. Hines , 78 S.D. 502 ( 1960 )

105 N.W.2d 70 (1960)

Lois E. HINES, Plaintiff and Respondent,
v.
Donald P. HINES, Defendant and Appellant.

No. 9777.

Supreme Court of South Dakota.

September 22, 1960.

Helm, Morman & Coacher, Sturgis, and Charles R. Hayes, Deadwood, for defendant and appellant.

Frank E. Henderson, Rapid City, for plaintiff and respondent on petition for rehearing.

BIEGELMEIER, Judge.

Appellant filed a petition for rehearing stating, among other things, that a custody order of July 3, 1958, had been entered which is later than that referred to in the opinion of the court. This order does not appear in the settled record and was not before us on appeal.

We have held on the record before us the trial court abused its discretion in awarding custody to the mother. We limited the retrial on that issue to the present record, and such supplemental evidence (meaning evidence since the trial) as may be received; this we did to avoid the time and expense of covering the period before the trial.

In accord with this the sentence "Custody of the children will remain in plaintiff under the terms of the March 13, 1958 order until the further order or judgment of the circuit court" should be and it is stricken from the opinion and in lieu thereof insert "The temporary and permanent custody of the children is for the trial court."

It appearing that no point has been overlooked or misapprehended by the court the petition for rehearing is denied.

All the Judges concur.