ELLSWORTH v. ELLSWORTH

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District Court of Appeal, Second District, Division 1, California.

ELLSWORTH v. ELLSWORTH.*

Civ. 19871.

Decided: November 10, 1953

John C. Campbell and W. Floyd Cobb, Los Angeles, for appellant. John U. Edwards, Glendale, for respondent.

The parties to this action were divorced in 1952. Final and interlocutory decree awarded custody of their minor child to plaintiff husband. Defendant wife defaulted and did not appear.

Thereafter the wife filed notice of motion to modify the decree as to custody. It was stipulated that the matter be referred to a court investigator, and that his report might be considered as evidence on the hearing of the wife's motion.

The investigator reported that the boy was two and a half years of age; that neither plaintiff nor defendant had remarried; that the father had been keeping the boy in a boarding home, but had recently employed a housekeeper and was taking care of the boy in his own home; that the mother was employed and lived with friends who would take care of the boy while the mother was at work. The investigator recommended that the boy be placed in the custody of the mother.

The matter was then referred to a court commissioner. The commissioner heard a number of witnesses, made findings of fact that the father had given the boy good care, that both parents were fit and proper persons to have custody; that, however, the best interests of the boy would be served by placing him with the mother. The commissioner recommended accordingly.

At the end of the commissioner's report appears the following notation by the judge of the Superior Court: ‘So ordered.’

The husband filed objections and exceptions to the report of the commissioner and the order of the court, and moved to set the order aside.

This motion was argued and submitted; whereupon the court made a minute order in part as follows:

‘Plaintiff's exceptions to the findings and report of the commissioner are sustained, and his motion to set aside the order based upon said findings and report is granted leaving the order for custody in effect as set forth in the interlocutor decree and as incorporated by reference in the final decree. Re Hearing is set for April 1–1953 at 9:45 a.m. The reporter's transcript is ordered filed. Memorandum opinion in re ruling is filed.’

Defendant appeals from this order.

Plaintiff moves to dismiss the appeal upon the ground that it was taken from a non-appealable order.

Section 963 of the Code of Civil Procedure provides that an appeal may be taken from any special order made after final judgment. The order under consideration determines custody of a ward of the court after final judgment of divorce, and falls within that category. Harron v. Harron, 123 Cal. 508, 56 P. 334; Crowley v. Superior Court, 17 Cal.App.2d 52, 61 P.2d 372; Sjoberg v. Hastorf, 33 Cal.2d 116, 199 P.2d 668; 3 Cal.Jur.2d 469.

The motion to dismiss the appeal is denied.

I dissent.

The order which modified the judgment by giving the child to the wife, in the circumstances and in the light of the record, was appealable. The second order setting the first order aside, in my opinion, is not appealable.

DRAPEAU, Justice.

WHITE, P. J., concurs.

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