¶1Dissenting Opinion
¶2I cannot agree with the result reached in the majority opinion for the following reasons:
¶3I cannot agree with the statement in the majority opinion as to how jurisdiction relating to custody of children is acquired and continued after a final decree of divorce is granted.
¶4In a review of the divorce statutes, I find that §8-1219, Burns’ 1946 Repl., Part 2, does not provide for a modification. The only statute providing for a modification is found in §3-1232, Burns’ 1946 Repl., Part 2, which relates to children wherein a trial court decrees a temporary separation. The real authority for such modification comes from judicial fiat wherein our Supreme Court has, by well-established rules, supplemented the provisions of §3-1219, Burns’, supra, by holding in many cases that in a divorce action the court has continuing jurisdiction in respect to the care, custody and support of the minor children of the parties, and may, in a proper proceeding, modify a decree as it pertains to the custody, care or support of said children at any time during the minority and/or dependency of said children, as the circumstances of the parents may require and in order to serve the best interests and welfare of the children involved. See Haag v. Haag (1959), 240 Ind. 291, 298, 163 N. E. 2d 243; Scott v. Scott (1949), 227 Ind. 396, 406, 86 N. E. 2d 533; Zirkle v. Zirkle (1930), *270202 Ind. 129, 132, 172 N. E. 192; Stone v. Stone (1902), 158 Ind. 628, 633; 64 N. E. 86; Bryan v. Lyon et al. (1885), 104 Ind. 227, 234, 3 N. E. 880, 54 Am. Rep. 309; Reineke v. Northerner (1949), 119 Ind. App. 539, 544, 84 N. E. 2d 900; 10 Ind. Law Encyc., Divorce, §168, p. 655; On The Relation of Rosenbarger v. Mar. C. C. et al. (1959), 239 Ind. 132, 155 N. E. 2d 125, 127.
¶5Nor can I agree with the statement made in the majority opinion that the special judge was selected under §2-1410, Burns’, 1946 Repl., Part 1. Since the first day of January, 1947, special judges in this state have been selected in the manner as provided for by Rule 1-12 of our Supreme Court, and the amendments made thereto.
¶6In the matter now before us it appears from the record that on the 10th day of February, 1958, the plaintiff below (appellant herein) was granted a divorce from the defendant below (appellee herein) by John W. Beauchamp, regular Judge of the Wabash Circuit Court, and, at the time of the granting of the divorce, the trial court placed the custody of a minor child, to-wit: three years of age, with the plaintiff, and a proper support order was made against the defendant.
¶7That afterwards, on the 24th day of October, 1958, the plaintiff below (appellant herein) filed a petition to modify the order as to the custody of said minor child, and that afterwards on the 24th day of November, 1958, plaintiff (appellant) filed affidavit for a change of judge; that on the 5th day of December, 1958, one Frederick E. Rakestraw was properly selected from a panel submitted by the regular Judge as Special Judge to try said cause, pursuant to Rule 1-12 of the Supreme Court. Said Special Judge thereafter filed his written qualifications and oath and assumed *271jurisdiction of said cause on the 18th day December, 1958.
¶8The powers of a person selected as a special judge are defined by §2-1425, Burns’ 1946 Repl., which provides, as follows:
“If the person selected consents to serve, he shall be qualified as other judges, and his appointment shall be filed with the clerk and entered on the order book; and he shall have power to hear and determine such cause until the same is finally disposed of, or change of venue thereof in proper cases.” (My emphasis)
¶9Our court, in construing the foregoing statute in the case of Miller v. Seiler (1924), (T. D.), 82 Ind. App. 36, 40, 41, 142 N. E. 719, stated:
“. . . a special judge is appointed to hear and determine a designated cause, such special judge, having qualified, acquires exclusive jurisdiction of the case throughout all of its stages, with substantially the same powers as to that case as the regular judge would have had. Perkins v. Hayward (1890), 124 Ind. 445, 24 N. E. 1033. See, also, Staser v. Hogan (1889), 120 Ind. 207, 21 N. E. 911, 22 N. E. 990.” See, also, State ex rel. Hodshire v. Bingham, Judge (1941), 218 Ind. 490, 491, 33 N. E. 2d 771. (My emphasis)
¶10It also appears that on the 12th day of December, 1958, the defendant (appellee) also filed a cross-petition seeking custody of said child.
¶11After submission, on the 2nd day of January, 1959, the trial court found against the plaintiff (appellant) on her petition to modify the divorce decree, and found for the defendant (appellee) upon his cross-petition and entered the following order, the pertinent parts of which follow:
“. . . It is, therefore, ordered and decreed that the custody of Roxanne Heller shall be given to the defendant Morris Heller, and that he retain *272the custody of said child until such time as the plaintiff may have provided a suitable home for said child within the jurisdiction of this Court and until further order of this Court.. .
¶12The record further reveals that on the 24th day of March, 1959, the defendant, appellee herein, filed a verified petition to modify the order of January 2, 1959, before Frederick E. Rackstraw, Special Judge, and, thereafter, on the 15th day of April, 1959, before the same Special Judge, the plaintiff (appellant) filed a cross-petition for change of custody of said minor child.
¶13It is to be noted that the appellant filed a counter-petition before said Special Judge and did not request that the cause be remanded to the regular Judge, nor did the appellant question the Special Judge’s jurisdiction at that time. I do not believe it necessary to cite authority that it is the general rule of law that the jurisdiction of a judge over a particular case must be raised in the first instance and in this case a motion to remand if the appellant was correct was the proper procedure to follow under such circumstances.
¶14It further appears from the record that on the 9th day of May, 1959, the parties were in court by counsel pursuant to the notice that the subsequent and supplemental petitions of the parties would be heard at that time. It also appears that Plumber & Plumber, counsel for the plaintiff, withdrew their appearance for said plaintiff (appellant) and thereupon, Bangs & Yates entered their appearance for the plaintiff (appellant) and filed written objections to the jurisdiction of the Special Judge, said pertinent part of said motion stated, “that jurisdiction of the said Frederick E. Rakestraw ceased and terminated upon the entry of his final decree on January 2, 1959.” Said motion was overruled.
¶15*273It is apparent from the record that the trial court, by overruling the motion questioning his jurisdiction, considered and held that the matter of the custody of said minor child was not finally terminated under the order the court entered on the 2nd day of January, 1959, on the original petitions of the parties, but only temporarily disposed of the question of custody until certain conditions were performed and held in abeyance a final order for further consideration.
¶16It is my opinion that the court’s ruling was correct, as it affirmatively appears that the trial court by its order, as heretofore above set forth, temporarily placed the custody of said minor child in the defendant until such time as the plaintiff provided a suitable home for said child within the jurisdiction of the court, and, by such verbiage, expressly retained jurisdiction over the parties and over the subject matter until the conditions set forth in the order were performed. The order was made for. the child’s benefit and was and still is one which it is entitled to have executed in all of its detail.
¶17I believe the general rule to be that where a court has retained a continuing jurisdiction by proper reservations in its decreee and/or order it may exercise its jurisdiction as occasion may require to enforce and/or make such modification by further order as it deems wise for the welfare and the benefit of said minor children. Had the order now before us been final, as the one made in the recent case of Haag v. Haag, supra,I would agree with the majority result.
¶18We must be mindful of the difference in the order made in the case of Haag v. Haag, supra,and the case at bar. In the Haag case, the final order read:
*274“Said petition for modification is now denied.”
¶19and, under such verbage, I agree that this particular order is final, complete and conclusive on its face and puts at rest forever the controversy involved on those particular petitions to modify filed by the relators in that particular case, and, as Judge Bobbitt stated in the Haag case, supra, was appealable as a final judgment under the civil code. It has been said by our Supreme Court that whether an order or decree is final or interlocutory is not determined from the character of the proceedings in which it is entered, but from the character of the relief granted. Smith v. Zumpfe (1940), 217 Ind. 431, 27 N. E. 2d 878.
¶20The test of the order before us as I see it under the Haag case, supra, and the cases of SmithV. Zumpfe, supra,and StoneV. Stone, supra,is, was the status of the child fixed by the order entered an adjudication which concluded both the court and the parties on the facts involved? To me, the answer is, no, as the order now before us only temporarily disposed of the question of the custody of the child because it placed the child in the custody of the defendant “and that he retain the custody of said child until such time as the plaintiff may have provided a suitable home for said child within the jurisdictiin of this court . . . .” This, I believe, brings the mater within the principle of law as announced by our Supreme Court in the case of Pokraka v. Lummus Co. (1952), 230 Ind. 523, at 528, 104 N. E. 2d 669, wherein our Supreme Court stated:
“. . . and a judgment is not final unless it determines the rights of the parties in the suit, or a distinct and definite branch thereof, and reserves no further question or direction for future determination. Bozovichar v. State (1952), 230 *275Ind. 358, 103 N. E. 2d 680; Ebenezer Old People’s Home v. Bernhard (1935), 100 Ind. App. 636, 642, 196 N. E. 129; Ragle v. Dedman (1910), 45 Ind. App. 693, 695, 91 N. E. 615; Home Electric Light and Power Co. v. Globe Tissue Paper Co. (1896), 145 Ind. 174, 175, 44 N. E. 191.” (My emphasis)
¶21I do not believe that we can say as a matter of law that the foregoing order is final, complete and conclusive on its face, for if such were true, then we would be faced with the fundamental principle of law that a final judgment shall put at rest forever the controversy involved in the litigation. See Chicago, etc., R. Co. v. Collins (1924), (T. D.), 82 Ind. App. 41, 49, 142 N. E. 634, 143 N. E. 712.
¶22It appears to me that in the case now before us the trial court, by order, expressly retained jurisdiction over the parties and the subject matter. The trial court had the power to make such an order if under the evidence the' interests of the child required. See Stone v. Stone, supra.Therefore, the filing of the subsequent and supplemental petitions by the appellee and the appellant could not deprive the special judge of his jurisdiction in this particular case. Upon proper notice being given, it was the duty of the trial court to consider the allegations asserted in the relators’ subsequent and supplemental petitions upon their merits and the court had jurisdiction to so do. See On The Relation of Rosenbarger v. Mar. C. C. et al., supra; Miller v. Seiler, supra.
¶23By reason of what I have heretofore stated, I do not believe the trial court erred in overruling the appellant’s motion for a new trial. I would affirm the judgment of the court below.