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District Court of Appeal, Fourth District, California.


Civ. 4498.

Decided: January 27, 1953

Will H. Winston, Long Beach, for appellant. Leonard Di Miceli, San Pedro, for respondent.

This is an appeal from an order denying an application for the modification of previous orders concerning the custody of two children, a boy 11 years old and a girl 9 years old.

On February 3, 1949, the defendant and cross-complainant was given an interlocutory decree of divorce. This decree approved a property settlement agreement entered into by the parties, which contained a provision that the custody of these children should be given to the sister of the defendant and her husband, and pursuant to that provision the decree gave such custody to those parties. The decree also contained a statement that nothing was determined by the court as to the fitness of either party to have the custody of the children, by reason of the fact that the parties had stipulated that no order should then be made with reference to that matter, but that at any time in the future when the question of custody should arise ‘evidence can be introduced by any interested party at the time of the hearing as to any acts or things, past or future, which might bear upon the question of the fitness of the party desiring such custody.’

On June 24, 1950, the plaintiff married another man. On November 15, 1950, the court modified its previous custody order by giving the plaintiff the right to visit the children every other Sunday from 1:00 P.M. to 7:00 P.M. On January 21, 1952, the plaintiff filed an application for a modification of the previous custody orders alleging that conditions had materially changed since those orders were made in that she had remarried, that she and her husband were happily married and had purchased a home, and she now had the ability to provide a suitable home for the children. It was also alleged that she and her husband are both fit and proper persons to have custody of the children. An affidavit in opposition was filed by the aunt and uncle, who had custody of the children under the previous order. At the hearing, oral evidence was received which makes a transcript of 50 pages, and the court talked to the children in the presence of counsel for both sides but what was there said does not appear in the record. The court entered an order denying any modification of the previous custody orders, and decreeing that the existing orders concerning custody of the minor children should remain unchanged.

The plaintiff has appealed from this order, the sole contentions being that she made a sufficient showing of changed circumstances, and that ‘the mother has the absolute right to the custody of the children as against strangers.’

In Stever v. Stever, 6 Cal.2d 166, 56 P.2d 1229, the father was given the divorce by default but no provision for custody of the 5-year old child was made. The child remained with the mother, and four years later she sought an order for custody in connection with a demand for support money. No reporter was present at the hearing, and the court gave custody to the paternal grandparents without any findings as to the fitness of either parent. The order was reversed, it being held that a finding as to the fitness of the mother should be made. A similar holding appears in Newby v. Newby, 55 Cal.App. 114, 202 P. 891. In Eddlemon v. Eddlemon, 27 Cal.App.2d 343, 80 P.2d 1009, custody was given to the grandmother by stipulation of the parties at the time of the divorce. At a hearing two years later, custody was denied to the mother and continued in the grandmother. No finding was made that the mother was unfit, and the undisputed evidence shows that both she and the grandmother were fit persons to have such custody. It was held that before custody can be taken from the parent and placed in a stranger there must be a finding that the parent seeking custody is unfit.

It has also been held that an application for modification of an award of custody is addressed to the sound legal discretion of the trial court, Fay v. Fay, 12 Cal.2d 279, 83 P.2d 716; that every presumption supports the reasonableness of the order fixing the custody of children, Prouty v. Prouty, 16 Cal.2d 190, 105 P.2d 295; that to warrant a modification of an order for custody a sufficient change of circumstances must be shown, Smith v. Smith, 85 Cal.App.2d 428, 193 P.2d 56; and that the burden is on the moving party to satisfy the court that conditions have sufficiently changed to justify the modification. Johnson v. Johnson, 72 Cal.App.2d 721, 165 P.2d 552.

In the instant case custody was not taken from the appellant without her consent. The original order of custody was made in accordance with a written agreement of the parties, approved by the court and made a part of the decree. It was further stipulated in the divorce hearing that no order need then be made concerning the fitness of the parties and that if any question as to custody of the children should be later raised, evidence might be presented as to both past and future acts of the parties having a bearing on the question of the fitness of the party desiring to obtain such custody. Under these circumstances, and especially in view of the unusual stipulation, as contained in the decree, with respect to the evidence that might be received concerning fitness in the event of a later proceeding to change the award of custody, we think the burden rested on the party seeking to obtain such a change in the existing order, not only to show a change of circumstances but to affirmatively show that the applicant was a fit and proper person to have such custody.

The appellant's petition alleged changed conditions in that she had remarried and had purchased a home, and alleged that she and her husband were fit persons to have such custody. She introduced evidence that she had remarried; that she and her husband had purchased a home about a month before the hearing, which home was partially unfinished but suitable for two adults and two children; and that, while she was presently working, she would resign from her job, if given the custody of the children. She offered no direct evidence on the issue of fitness. On cross-examination she admitted that prior to the modification order of November 15, 1950, she had given birth to a child born out of wedlock, stating that she had placed that child ‘out for custody’, signing some papers which the authorities informed her she could not revoke. The record does contain a report of the probation officer dated prior to the hearing, but filed after the hearing and after a minute order denying the application for a change in custody. In this report the probation officer stated that his investigation indicated that the appellant and her husband ‘appeared to have conducted themselves in a proper manner’ from November 1, 1950, until the present time. This hearsay evidence was not very satisfactory and it does not even appear that that alleged fact was called to the attention of the court at the hearing.

At best, the appellant made an unsatisfactory showing with respect to the matter of her fitness. A large part of such meager evidence as there was on this matter seems favorable to the respondent. The evidence seems to have been presented, by the appellant, on the assumption that no showing in that regard was needed, which probably accounts for the court's failure to make a finding on this matter. The failure to make such a finding must also be viewed in light of the fact that the original custody order was made in accordance with the written agreement of the parties, and in accordance with a further stipulation which, in effect, called for a very special showing of fitness in the event it was later sought to change the order of custody agreed upon. No such showing was made, and no good reason was presented for relieving appellant from her written agreement. Under the circumstances here appearing, and in the absence of any further showing, we think no abuse of discretion appears and that the record does not justify a reversal.

The order appealed from is affirmed.

BARNARD, Presiding Justice.

GRIFFIN and MUSSELL, JJ., concur.