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District Court of Appeal, First District, Division 2, California.

Max HOLSINGER, Plaintiff and Respondent, v. Anne HOLSINGER, Defendant and Appellant.

Civ. 15904.

Decided: November 23, 1954

Crist, Stafford & Peters and John M. Donegan, Palo Alto, for appellant. Freed & Freed, San Francisco, for respondent.

This is an appeal by the mother of two children from an order awarding their custody to the father following a decree of divorce wherein, by agreement of the parties, the husband and wife were given joint legal custody, with the physical custody in the wife, subject to the right of the husband of visitation at reasonable times. A final decree of divorce embodying the terms of this agreement was entered April 6, 1950.

This decree and agreement was followed amicably by the parents until the father married again. Then the trouble began, the father alleging in this proceeding that the mother was not giving the children proper care. It is difficult to understand just what the father's complaint was. At the time of the hearing of the motion (February, 1953) the daughter was eleven years old; the son was eight. Both children were resident students at the Educational Guidance Center, a private school in the City of Palo Alto. This school was selected by the father after an investigation of its facilities, and both were entered in the school as resident students at the father's request. The mother, who resided and was employed in the City of Palo Alto acquiesced. From all that appears in the record these arrangements were wholly satisfactory to both parents until respondent's second wife entered the picture and insisted that the children be brought to live at her home.

Reference has been made to the property settlement of the parties incorporated into the final decree of divorce. Relating to the custody of the children the decree recites, in part: ‘It is hereby further ordered, adjudged and decreed that plaintiff and defendant shall have the joint legal custody of Judith Ann Holsinger and Thomas Craig Holsinger, the minor children of plaintiff and defendant, with the rights set forth in and subject to the provisions of said property settlement agreement, with actual physical custody of said minor children to remain with defendant, with the right of plaintiff at all reasonable times to see and visit said minor children, and subject to the continuing jurisdiction of the Court to make such other and further order or orders as it may in the future be proper for the best interests of said children.’

Though the decree declares that the settlement agreement is ‘approved, confirmed and ratified’ the subsequent recital of the terms of the agreement is inaccurate. The decree states that the parties should have joint legal custody of the children ‘with the rights set forth in * * *’ said agreement. One of the important rights of the wife set forth in the agreement is, ‘but if they have any disagreement with respect to said children, the instructions and directions of Wife shall in each such instance be followed the same as though Wife had the exclusive custody of said children.’ The effect of this stipulation is that the wife was given the exclusive right to determine all matters relating to the education and control of the minors as if she had been granted exclusive custody.

Following the terms of the agreement the mother decided that the little girl should be placed in a private school because she was somewhat retarded mentally. The father agreed and he personally made arrangement for the enrollment of both children in the Palo Alto school. The boy was placed in the private school so that both children could be together. Both parents agreed. When the boy reached the age of eight the father suggested that it was time that he should attend a public school. The mother agreed and arrangements were made for his enrollment in the Palo Alto public school.

These were the circumstances relating to the children in February, 1953, when the trial court was asked to upset the solemn agreement of the parties and to turn the exclusive physical custody of the children to the father.

The statutory law governing the courts in these proceedings is found in section 138, subd. (2) of the Civil Code, which reads: ‘(2) As between parents adversely claiming the custody, neither parent is entitled to it as of right; but other things being equal, if the child is of tender years, custody should be given to the mother; if the child is of an age to require education and preparation for labor or business, then custody should be given to the father.’

Here the trial court found that, in effect, ‘other things being equal,’ that both parents were fit persons for the custody. Both parents were able to provide suitable homes for the children, and both were able and willing to provide suitable education and training. There was no evidence of any character showing a change of conditions from the time of the entry of the final decree.

The case law is well settled and is without conflict, except in a few badly reasoned cases which do not call for comment. In the recent case of Gantner v. Gantner, 39 Cal.2d 272, 276, 246 P.2d 923, 927, where the Supreme Court said: (quoting from Foster v. Foster, 8 Cal.2d 719, 727, 68 P.2d 719) “But this does not mean the parties to such litigation may, after a court has once heard evidence upon the subject of their fitness * * * and ruled upon the question, immediately again invoke the powers of the court to have it inquire into the same or other facts existing at the time of or prior to the former decree. Such holding would lay a foundation for interminable and vexatious litigation. * * * The rule is stated to be that to justify a modification there must be a change of circumstances arising after the original decree is entered, or at least a showing that the facts were unknown to the party urging them at the time of the prior order, and could not with due diligence have been ascertained.' Foster v. Foster, 8 Cal.2d 719, 727, 68 P.2d 719, 722, quoting from Olson v. Olson, 95 Cal.App. 594, 597, 272 P. 1113; accord: Munson v. Munson, 27 Cal.2d 659, 666–667, 166 P.2d 268; Prouty v. Prouty, 16 Cal.2d 190, 193, 105 P.2d 295.'

It is stated in the dissenting opinion that the order should be affirmed because in the letter of appellant dated October 22, 1952, she denied the right of the father to visit the children. This is not so. In that letter appellant stated: ‘I very definitely have not changed my mind in any way regarding your visiting the children’ but that she would not permit them to go to San Francisco, or anywhere else. This was in full accord with the terms of the decree of divorce which awarded the mother actual physical custody of the children, subject to the husband's right of visitation. Nowhere in the agreement, or in the court's decree, was the father authorized to take the children into his own possession, or to keep them in his custody for any period of time. He was given the right to visit the children at reasonable times and nothing in the record discloses that such right has been denied him.

Certainly under the cases heretofore cited no change of circumstances has been shown justifying a complete change in the custody order made in the decree of divorce in accordance with the agreement of the parties.

The order is reversed with costs to appellant including reasonable attorneys' fees.

I dissent.

The order of the court modifying the provisions of the decree with respect to the custody of the children continues the joint legal custody of both children in both parents but transfers the actual physical custody from the mother to the father. It gives the mother reasonable rights of visitation and specifically on alternate week-ends from Friday evening to Sunday evening to have both children with her in her home. Because of the special educational and developmental problems of the daughter it provides that she shall be placed in a boarding school of the father's selection with the rights of reasonable visitation while she is there granted to both parents.

The evidence before the court showed that from the time of the original decree to August 28, 1952 the parents of these children had cooperated harmoniously in the arrangements for their education and the visitation rights of the father, including his taking the children with him on occasions agreed upon. They had harmoniously agreed for their transfer from the school in Palo Alto, the boy to go to a public school and the girl to another school for retarded children. On August 28, 1952 the mother and her mother took the children from the home of the father, whom they had been visiting by agreement, because they found them playing unattended. Thereafter the mother refused to let the father visit the children except at her home and refused him any further rights to have the children with him elsewhere. On October 22, 1952 the mother wrote the father a letter whose tone and tenor may be gathered from the following quotations: ‘I very definitely have not changed my mind in any way regarding your visiting the children. As I told you before they will not under any circumstances at any time be allowed to go to San Francisco or anywhere else with you * * * If you wish to cause any trouble I will see both of you in court because your present wife will definitely be named * * * Don't push me any further or you will wish with all your heart that you had never brought the whole rotten mess into the open * * *’

This left the father no choice if he did not wish to surrender the children entirely to the mother except to appeal to the court as he had challenged him to do. The trial judge heard and saw the parties. He was impressed by the mother's bitterness and intemperance as shown on the witness stand, commenting at one point: ‘* * * you are trying to throw venom against him (the father), and you are using the children as a shield.’ The judge also had before him the report of the investigator, who found the father's attitude toward the children positive and constructive and that the mother ‘was frank in stating that there was great animosity between her relatives and Mr. Holsinger's, and between herself and him because of the divorce.’

I feel that my associates take too narrow a view of the ‘changed circumstances' rule. A mother who has cooperated amicably with the father for years in the care and education of the children suddenly becomes hostile, vindictive and intransigent. The psychological impact upon the children (and all parents know how sensitive children can be to the attitudes of their parents) of this emotional change in the mother was for the trial court to assay. The welfare of the children is and should be the paramount consideration in all custody cases and the trial judge in weighing change in circumstances should not be limited to physical changes, but should be allowed to weigh as well the subtler but frequently more important changes in mental and emotional attitudes. The adjustment of children of broken homes is difficult at best and this adjustment may be made much more difficult if the children are constantly under the influence of one parent whose bitterness against the other cannot be concealed. The problem is essentially the trial court's problem and we should not overturn his considered judgment unless it finds no substantial support in the evidence.

I would affirm the order.

NOURSE, Presiding Justice.

KAUFMAN, J., concurs.