Smith, J.
— The divorce case of Maxine Johnson v. Frank Johnson was commenced and tried in the district court of Monroe County. Bespondent, a judge of that court, presided. Both parties sought a decree of divorce and for custody of the minor children. At the close of all the evidence respondent refused to grant a divorce to either party but adjudged that “plaintiff, until
the further order of the court, have custody of the two' minor children of plaintiff and defendant * # * with right given to defendant to visit said children at all reasonable times” and “that until the further order of this court, defendant pay to the clerk of this court for the support of said two minor children the sum of $15 per week to be paid to the plaintiff.”
Respondent also ordered and adjudged: “that the court retain jurisdiction of this cause for further appropriate orders as to the general welfare of said two minor children,, and they are placed under the general supervision of the Acting Child Welfare Director of Monroe County, Iowa — but in custody of their mother —-report to be made by the said Acting Child Welfare Director once each................ as to the well-being of said children.”
No appeal has been taken from the decision in said suit and we cannot here inquire into the merits of the case or the justice or wisdom of the result. The defendant therein brings this proceeding as petitioner to test the
right
of the court to make this order as to custody and support of the children while denying divorce to both parties. The
validity
of the order is the sole issue here.
I. Our statute in the chapter on divorce provides:
“When a divorce is decreed,
the.court may make such order in relation to the children * * and the maintenance of the parties as shall be right. [Italics supplied.]
“Subsequent changes may be made by it in these respects when circumstances render them expedient.” Section 598.14, Code of 1946.
Clearly this language does not authorize an order for child custody in a divorce proceeding in absence of a divorce decree. By implication it denies the existence of such power. The implication becomes certainty when we read the quoted section in connection with section 668.1, Code of 1946, which says: “Parents are the natural guardians of the persons of their minor children,
and equally entitled to their care and custody.”
The predecessor of section 668.1 as found in the Code of 1851 and the Revision of 1860, gave the father priority over the mother. Section 598.14 states the law as it has stood at least since 1851, permitting the
court in a divorce case to change the statutory equality of custodial right- “when a
divorce is decreed.”
The conclusion is inescapable that the legislature intended no adjudication of custodial rights in a divorce proceeding in the absence of a legal separation. This court has consistently acted on that assumption. - See Porter v. Porter, 190 Iowa 1126, 181 N.W. 393; Goecker v. Goecker, 227 Iowa 697, 288 N.W. 884; Garrett v. Garrett, 114 Iowa 439, 87 N.W. 282.
In each of these cases the trial court’s decision, decreeing custody while denying divorce, was reversed on appeal. In Porter v. Porter we said, referring to the language of .the Code section (now 598.14, supra):
“This power is given as incidental to the power to grant a divorce in the divorce proceeding. The matter,of awarding the children is specifically conferred under this statute only in the event that a divorce is'granted. Such power is,not conferred as an incident to the’ ordinary action for divorce, where the divorce is not granted.” (190 Iowa at page 1129, page 395 of 181 N.W.)
The opinion in Oliver v. Oliver, 216 Iowa 57, 58, 248 N.W. 233, 234; in upholding on appeal a custodial and property decree in connection with a divorce decree, says: “In a suit for divorce, the property rights of the parties and custody of the children cannot be adjudicated, unless a case is made warranting á decree of divorce, and can only be affected in a decree granting a divorce or separate maintenance.”
As said in the Porter case, supra, at page 1130 of 190 Iowa, “cases from other courts are of comparatively little value * * * because of the variance in the statutes of the several states.” See 17 Am. Jur., Divorce and Separation, section 677; 27 G. J. S., Divorce; section 207. ' ■ ■ . . . ■
II. • The foregoing would be conclusive here had the case come to us on appeal. But this is certiorari. Petitioner has the burden of showing respondent has exceeded his “proper jurisdiction or otherwise acted'illegally.” Rule 306; Jowa.Rules of Civil Procedure. Is the order complained of merely -erroneous or is it actually- invalid as being beyond the jurisdiction and power of the district court in a'divorce case?
In the case of Goecker v. Goecker, supra (227 Iowa, page 701, 288 N.W., page 886), it is said: -
“We decline to enter upon a discussion of the power of the trial court to make the order concerning the custody of this child where a divorce is denied. This matter’ has been heretofore considered by this court. [Citing cases.]
“In this ease, we simply say, under the record, the trial court’s order is unjust’and inequitable and, hence, erroneous.”
The cases cited are Oliver v. Oliver, Porter v. Porter, and Garrett v. Garrett, all supra, and Mollring v. Mollring, 184 Iowa 464, 167 N.
W.
524.
The Mollring ease is cited in respondent’s brief to the 'proposition that the district court has inherent power to adjudicate custodial rights of infants and that as the issue was.tendered there was
“in some part of the court * * *
power to determine the custody of the child, and no reason why the parties should be compelled to go before the same judge in another court and present the same question.”
But the Mollring case is easily distinguishable from the, instant case and those heretofore discussed. In it the defendant not only answered the plaintiff’s petition for' divorce but he filed a cross-petition alleging
he had already secured a divorce from plaintiff in another state
and praying only that he be awarded custody .of the children. The issue of custody,
independent of and not incidental to the divorce suit,
.was thus squarely raised and was litigated by the parties without objection. As to that issue the case stood as if defendant had commenced a separate suit in equity, alleging the .parties were divorced, and invoking the original chancery jurisdiction over child custody. The following language of the opinion gives the clew to the decision:
“If, then, all there was in the case was a suit for divorce and a dismissal of the petition,
there was no power in the divorce court to- make custodial orders.
And Davis v. Davis, 75 N. Y. 221, 'amounts to a holding that, when all that is present is a dismissed pétitioii for divorce,
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Smith, J.
— The divorce case of Maxine Johnson v. Frank Johnson was commenced and tried in the district court of Monroe County. Bespondent, a judge of that court, presided. Both parties sought a decree of divorce and for custody of the minor children. At the close of all the evidence respondent refused to grant a divorce to either party but adjudged that “plaintiff, until
the further order of the court, have custody of the two' minor children of plaintiff and defendant * # * with right given to defendant to visit said children at all reasonable times” and “that until the further order of this court, defendant pay to the clerk of this court for the support of said two minor children the sum of $15 per week to be paid to the plaintiff.”
Respondent also ordered and adjudged: “that the court retain jurisdiction of this cause for further appropriate orders as to the general welfare of said two minor children,, and they are placed under the general supervision of the Acting Child Welfare Director of Monroe County, Iowa — but in custody of their mother —-report to be made by the said Acting Child Welfare Director once each................ as to the well-being of said children.”
No appeal has been taken from the decision in said suit and we cannot here inquire into the merits of the case or the justice or wisdom of the result. The defendant therein brings this proceeding as petitioner to test the
right
of the court to make this order as to custody and support of the children while denying divorce to both parties. The
validity
of the order is the sole issue here.
I. Our statute in the chapter on divorce provides:
“When a divorce is decreed,
the.court may make such order in relation to the children * * and the maintenance of the parties as shall be right. [Italics supplied.]
“Subsequent changes may be made by it in these respects when circumstances render them expedient.” Section 598.14, Code of 1946.
Clearly this language does not authorize an order for child custody in a divorce proceeding in absence of a divorce decree. By implication it denies the existence of such power. The implication becomes certainty when we read the quoted section in connection with section 668.1, Code of 1946, which says: “Parents are the natural guardians of the persons of their minor children,
and equally entitled to their care and custody.”
The predecessor of section 668.1 as found in the Code of 1851 and the Revision of 1860, gave the father priority over the mother. Section 598.14 states the law as it has stood at least since 1851, permitting the
court in a divorce case to change the statutory equality of custodial right- “when a
divorce is decreed.”
The conclusion is inescapable that the legislature intended no adjudication of custodial rights in a divorce proceeding in the absence of a legal separation. This court has consistently acted on that assumption. - See Porter v. Porter, 190 Iowa 1126, 181 N.W. 393; Goecker v. Goecker, 227 Iowa 697, 288 N.W. 884; Garrett v. Garrett, 114 Iowa 439, 87 N.W. 282.
In each of these cases the trial court’s decision, decreeing custody while denying divorce, was reversed on appeal. In Porter v. Porter we said, referring to the language of .the Code section (now 598.14, supra):
“This power is given as incidental to the power to grant a divorce in the divorce proceeding. The matter,of awarding the children is specifically conferred under this statute only in the event that a divorce is'granted. Such power is,not conferred as an incident to the’ ordinary action for divorce, where the divorce is not granted.” (190 Iowa at page 1129, page 395 of 181 N.W.)
The opinion in Oliver v. Oliver, 216 Iowa 57, 58, 248 N.W. 233, 234; in upholding on appeal a custodial and property decree in connection with a divorce decree, says: “In a suit for divorce, the property rights of the parties and custody of the children cannot be adjudicated, unless a case is made warranting á decree of divorce, and can only be affected in a decree granting a divorce or separate maintenance.”
As said in the Porter case, supra, at page 1130 of 190 Iowa, “cases from other courts are of comparatively little value * * * because of the variance in the statutes of the several states.” See 17 Am. Jur., Divorce and Separation, section 677; 27 G. J. S., Divorce; section 207. ' ■ ■ . . . ■
II. • The foregoing would be conclusive here had the case come to us on appeal. But this is certiorari. Petitioner has the burden of showing respondent has exceeded his “proper jurisdiction or otherwise acted'illegally.” Rule 306; Jowa.Rules of Civil Procedure. Is the order complained of merely -erroneous or is it actually- invalid as being beyond the jurisdiction and power of the district court in a'divorce case?
In the case of Goecker v. Goecker, supra (227 Iowa, page 701, 288 N.W., page 886), it is said: -
“We decline to enter upon a discussion of the power of the trial court to make the order concerning the custody of this child where a divorce is denied. This matter’ has been heretofore considered by this court. [Citing cases.]
“In this ease, we simply say, under the record, the trial court’s order is unjust’and inequitable and, hence, erroneous.”
The cases cited are Oliver v. Oliver, Porter v. Porter, and Garrett v. Garrett, all supra, and Mollring v. Mollring, 184 Iowa 464, 167 N.
W.
524.
The Mollring ease is cited in respondent’s brief to the 'proposition that the district court has inherent power to adjudicate custodial rights of infants and that as the issue was.tendered there was
“in some part of the court * * *
power to determine the custody of the child, and no reason why the parties should be compelled to go before the same judge in another court and present the same question.”
But the Mollring case is easily distinguishable from the, instant case and those heretofore discussed. In it the defendant not only answered the plaintiff’s petition for' divorce but he filed a cross-petition alleging
he had already secured a divorce from plaintiff in another state
and praying only that he be awarded custody .of the children. The issue of custody,
independent of and not incidental to the divorce suit,
.was thus squarely raised and was litigated by the parties without objection. As to that issue the case stood as if defendant had commenced a separate suit in equity, alleging the .parties were divorced, and invoking the original chancery jurisdiction over child custody. The following language of the opinion gives the clew to the decision:
“If, then, all there was in the case was a suit for divorce and a dismissal of the petition,
there was no power in the divorce court to- make custodial orders.
And Davis v. Davis, 75 N. Y. 221, 'amounts to a holding that, when all that is present is a dismissed pétitioii for divorce,
there is no power to award the Custody of chil'dren; and such potuer is not conferred by a statute which em
powers the court to make orders ‘during the pendency of the cause or at its final hearing or afterward.’
[Italics supplied.] But * * * it does not follow that the court had no inherent power to deal with the custody of infants. * * * The chancery court has original jurisdiction over the custody of infants as
parens patriae.”
(184 Iowa at page 471, page 527 of 167 N.W.)
In effect the opinion held that because the defendant, without seeking a divorce, but contending a legal divorce had already been granted, sought custody of his children at the hands of the chancellor, and because no procedural objection was urged and the question was actually litigated independent of the divorce jurisdiction and independent of the grounds for divorce, the court of equity had power to adjudicate it. The opinion is long and not easy to analyze but we believe we have correctly stated its substance. Only when so interpreted can it be harmonized with our other decisions heretofore referred to. See analysis of the Mollring case in Porter v. Porter, supra, where it is pointed out that evidence on the question of custody was offered by,both parties after the court announced it would deny plaintiff a divorce. (190 lowa at page 1128.)
The case is clearly not an authority in support of respondent’s contention here when it says: “ If, then, all there was in the case was a suit for divorce and a dismissal of the petition, there was no power in the divorce court
to make
custodial orders'.” We expressly approved this pronouncement in Porter v. Porter, supra (190 Iowa at page 1129). There was nothing in the instant case but a suit and a cross-petition for divorce, both denied. True, each party included in his prayer for divorce the usual request for custody. That issue is inherent in every divorce case where there are minor children, whether expressly raised or not. Zuver v. Zuver, 36 Iowa 190. Certainly there was no invocation here of any inherent power of equity apart from or independent of the divorce issues.
It may be conceded there is much discord in the eases. See annotations:. L. R. A. 1917D 976; 35 L. R. A., N. S., 1159; 113 A. L. R. 902; and 151 A. L. R. 1380. It would be indeed difficult to determine on which side lies the numerical weight of authority.
The annotators in both 35 L. R. A., N. S., and L. R. A. 1917D express the opinion the eases are quite evenly divided. See also 17 Am. Jur., Divorce and. Separation, section 67.7, and Cumulative Supplement. Yariations in statutes and in procedural manner of approach would have to. be taken into account as well as. the differences in circumstances of the multitude of eases. To attempt such an appraisement here is neither necessary nor desirable.
Our own decisions definitely place us on the side of those jurisdictions in which the right to make custodial orders is denied when no divorce or separate maintenance decree is granted, except in the unusual case (such as Mollring v. Mollring, supra) in which the issue is presented independently of any prayer for divorce and under pleading and proof indicating there had ah ready occurred a legal separation of the parents.
A custodial and support decree where there is no legal separation of the parents would seem .incongruous. It would give judicial sanction to a breaking up of the home where neither party is entitled to a divorce or a decree of separate maintenance. It would make the divorce case a sort of guardianship proceeding for litigating the custodial and support question between parties who, under our statute, are the natural guardians of their minor children “and equally entitled to their care and custody.” If children are being neglected or are delinquent or dependent there is an appropriate method of having them cared for.
We are not willing to adopt a rule that would give either party in a divorce or separate-maintenance case a priority over the other of custodial right when there is no adjudication upon statutory grounds authorizing one to live separate from the other. We think our statutes and prior decisions deny such power to the court in a divorce suit.
The writ is accordingly sustained. — Sustained.
Hale, C. J., and Mulroney, Wennerstrum and Hays, JJ., concur.
Garfield, Bliss and Oliver, JJ., dissent.
Mantz, J., not sitting.