Mathewson

The sole issue on this appeal is whether the evidence is sufficient to sustain an order modifying child custody provisions of an interlocutory divorce action. The plaintiff and the defendant were husband and wife; were parties to a divorce action tried on February 1, 1961; and obtained an interlocutory decree therein declaring that each of them was entitled to a divorce and awarding custody of their fifteen month old son to the defendant, his mother.

At the time of the foregoing trial the defendant-wife was pregnant by a man other than her husband, the pregnancy occurring after separation from the latter, but she concealed this fact from her attorney, from her husband, and from the court. Following entry of the interlocutory decree she and her son lived in a one-bedroom apartment. The father of her illegitimate child moved in and lived with them. He was referred to as “Daddy” when the defendant spoke of him to her son.

Upon learning of his wife’s pregnancy, the plaintiff moved the court to modify the custody provisions of the interlocutory decree and place the boy with him.

Subsequently, upon advice of counsel, the father of the illegitimate child moved out of the…