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

Henrietta SASSON, Plaintiff, Cross-Defendant and Respondent, v. Haim SASSON, Defendant, Cross-Complainant and Appellant.

Civ. 16511.

Decided: October 10, 1955

John R. Golden, San Francisco, for appellant. Wagener & Brailsford, Oakland, for respondent.

Plaintiff filed in Alameda County a complaint for a divorce, the custody of the two minor children of the marriage, and a prayer for financial support of herself and the children. The defendant filed an answer and a cross-complaint in which he did not ask for a divorce, but prayed for an award of joint custody of the minor children. Simultaneously with the filing of a cross-complaint defendant filed a motion for a change of the place of trial to the City and County of San Francisco on the ground of residence. The plaintiff filed an affidavit opposing the change on the ground of the convenience of witnesses. She named four witnesses—two residing in Alameda County and two residing in Sacramento County—as parties necessary for the presentation of the case. The motion of defendant was denied.

His appeal from this order is based on the sole ground that it was a breach of discretion of the trial court. Uniformly the reviewing courts have held that the granting or denying of such motions is a matter of discretion resting in the trial court. Code of Civil Procedure, § 396b; Di Giorgio Fruit Corp. v. Zachary, 60 Cal.App.2d 560, 563, 141 P.2d 8; White v. Kaiser-Frazer Corp., 100 Cal.App.2d 754, 224 P.2d 833; Lyon v. Master Holding Corp., 50 Cal.App.2d 238, 241, 122 P.2d 947; 25 Cal.Jur. pp. 884–885. It would add nothing to this opinion for us to say whether the grounds advanced in the motion for a change were in our opinion sufficient. It needs no more than the statement of the accepted rule that in cases of this character the discretion rests in the trial court and that the exercise of that discretion will not be disturbed on appeal except upon a showing of gross abuse. No such showing has been made here.

Order affirmed.

NOURSE, Presiding Justice.

DOOLING and KAUFMAN, JJ., concur.