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District Court of Appeal, Second District, Division 3, California.

Masaka GOTO, Plaintiff and Appellant, v. James GOTO, Defendant and Respondent.*

Civ. 23089, 23090.

Decided: October 17, 1958

MacBeth & Ford, Los Angeles, Malcolm S. Millard, Carmel, James E. Fagan, Long Beach, and Scot Raymond, for appellant. Wm. H. Neblett, Los Angeles, for respondent.

Appeal by plaintiff-mother from that part of a custody order modifying interlocutory and final decrees of divorce, and from an order awarding $100 attorney's fees for past services and denying attorney's fees and cost on appeal.

The parties were married February 12, 1942 and separated November 3, 1953. Plaintiff was awarded an interlocutory judgment of divorce on February 18, 1955. Custody of the two children of the parties, Denise and Hans, then aged 12 and 4, respectively, was awarded to plaintiff, with the right of reasonable visitation in defendant, and defendant ordered to pay plaintiff $300 a month for the support of each child. The interlocutory decree provided, among other things, that ‘the defendant may visit and have the possession of the children between the hours of 12:00 noon and 7:00 p. m. on alternate Sundays and alternate national holidays; and that the defendant shall have the duty of calling for and returning said children to their home.’ The decree is silent concerning the place where the children are to live, and there was no injunction with respect to where plaintiff could reside. The final decree was entered April 19, 1956, incorporating the provisions of the interlocutory decree respecting the custody and support of the children.

In July 1955 plaintiff moved to Oakland, California, with the children. She resigned her position as a physician with the Los Angeles City Schools and went to work as a civilian physician for the Army in Oakland. In June 1956 plaintiff remarried and has been living in Carmel California, where the children also lived until the orders were entered in this proceeding.

In September 1956, on application of defendant, an order was made requiring plaintiff to show cause why custody of the children should not be awarded to defendant, or that plaintiff be required to return the children to Los Angeles county so that he could exercise his visitation rights as granted by the decree. On October 29, 1956, the matter was referred to a commissioner who postponed hearing to January 16, 1957, pending an investigation and report by a court investigator. An interim order was made on October 29 that ‘during the period of continuance the defendant shall be entitled to physical possession of the minor children on the week-end of Friday the 16th to November 18 and from December 19 to December 27 providing the defendant pays for and provides airplane transportation for the minor children from Carmel to Los Angeles and retune.’

At the hearing on January 16, 1957, the judge heard the testimony of the parties and the court investigator, and received the report of the investigator in evidence.1 The court then made the following order:

‘Custody of the minor children is to remain with plaintiff until the end of the school term, in June, with right of reasonable visitation to the defendant, as heretofore ordered; defendant may have physical custody of the children one-half of the Easter vacation and during the summer vacation, with the exception of the first week in August, when plaintiff may have the children. Further hearing on custody is to be had at a date prior to next September, to be agreed upon by the parties. Plaintiff is ordered to pay her own attorney's fees and costs, on the ground that she was responsible for taking the children to Oakland, and by reason of that fact it was necessary for defendant to bring this modification.’

The matter was again heard on August 28, 1957. After testimony of the parties and with approval of both parents the children were privately interviewed by the court in chambers. On August 29, 1957 the court made the following order:

‘After talking with the two minor children of the parties in chambers, the Court makes the following order and findings: The Court finds that both parents are fit and proper persons to have custody of the minor children. The Court further finds that the daughter being over the age of 14 years has expressed a preference to live with the defendant and that both children should remain together under the custody of the same parent. It is therefore ordered that sustody of the minor children is awarded to the defendant; the plaintiff may have physical custody of the minor children during the months of July and August of each year, at which time the defendant shall have rights of reasonable visitation. The order for support of the minor children is vacated except for the months of July and August when the children are with the plaintiff at which time the defendant shall pay support to the plaintiff in the same amounts he has been paying. Plaintiff is to have physical custody of the minor children for one-half of the Christmas vacation and one-half of the Easter vacation to alternate each year so that the children will actually be with her on Christmas Day of one year and on Easter of the following year.’

Plaintiff appeals (1) from the order of August 29, 1957, insofar as it awards the custody of Hans to defendant and insofar as it modifies the final decree that defendant support Hans, and (2) from an order directing defendant to pay $100 attorney's fees for services performed and denying plaintiff's motion for attorney's fees and costs on appeal.

Appeal from Modification of Custody Order

The issue is whether the court abused its discretion in the order of August 29, 1957 modifying the decrees.

Plaintiff contends the decrees awarding her custody of the young boy cannot be modified in the absence of evidence establishing a change of conditions detrimental to the welfare of the child. In this connection she argues that evidence one of the children of the parties has reached the age of discretion sufficient to choose to live with the other parent is not such a change of circumstances as would warrant a change in custody of the other child of tender age. We agree. Because of the disparity in ages between Hans, the 6-year-old boy, and his 14-year-old sister and the evidence bearing on the subject of the welfare of this child under such change in custody, we must conclude that it was an abuse of the court's discretion to modify the custody provision of the decrees as to Hans.

To warrant modification of a custodial order the general rule is said to be there must be substantial evidence of a change of circumstances after the entry of the original decree (Davis v. Davis, 41 Cal.2d 563, 565, 261 P.2d 729), except in a case where, despite the fact that there was no change of circumstances, nevertheless the welfare of the child requires or justifies the change in the previous order of custody. Gantner v. Gantner, 39 Cal.2d 272, 276, 246 P.2d 923; Foster v. Foster, 8 Cal.2d 719, 726, 68 P.2d 719; Juri v. Juri, 69 Cal.App.2d 773, 778, 160 P.2d 73. The one seeking modification has the burden of proof to show facts warranting the change in custody and that it is for the child's best interests. Johnson v. Johnson, 72 Cal.App.2d 721, 724, 165 P.2d 552; Stagliano v. Stagliano, 125 Cal.App.2d 343, 348, 270 P.2d 91.

Civil Code, section 138, states the considerations which should guide a court in the exercise of its discretion in determining the custody of children. Subdivision (2) provides:

‘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 * * *.’

There is no fixed and certain age of minority which can be said to constitute a child of ‘tender years.’ Russell v. Russell, 20 Cal.App. 457, 461, 129 P. 467. In Taber v. Taber, 209 Cal. 755, 290 P. 36, a child of six was held to be a child of tender years. The court pointed out that the sex of the child is to be considered as well as its physical development in determining whether it is a child of tender years. In Bemis v. Bemis, 89 Cal.App.2d 80, 200 P.2d 84, this court reversed an order of a trial judge who had refused to award two children, aged 5 1/2 and 7, to their mother who was a fit person. We stated (89 Cal.App.2d at page 83, 200 P.2d at page 86):

‘The ‘other things' [referred to in Civ.Code, § 138] that are to be weighed and considered are a good home, congenial surroundings, intelligent attention and direction in matters affecting the health, growth and development of the children—these are the principal advantages that must be looked for. The court has a broad discretion in determining whether such advantages are offered by the respective parents, and whether they are equal, but if the evidence clearly establishes that the children will have equal advantages in the home of the mother and that the mother has demonstrated her ability and willingness to perform her maternal duties properly, the law requires that young children be placed with her. * * *

‘[89 Cal.App.2d at page 90, 200 P.2d at page 90.] Upon the undisputed evidence in the case, section 138 of the Civil Code is controlling. When facts are established which clearly make applicable the quoted provision of the section that custody should be awarded to the mother, it is not within the discretion of the court to ignore it. There is no more sound or universally recognized rule of law to be found in the books. Where the court finds that ‘other things' are equal, young children are invariably given into the custody of their mother. We say ‘invariably’ because we have not found in our reported cases a single instance in which the custody of young children has been awarded to their father upon evidence that the mother was a fit and proper person to have their custody and was able to give them advantages equal to those that they would enjoy in the home of the father. We need not elaborate upon the reasons which underlie this sound policy of the law. They are stated with great clarity and completeness in many cases, and we shall therefore refer only to Juri v. Juri, 69 Cal.App.2d 773, 160 P.2d 73, and cases therein cited.' (Emphasis added. Also see Ex parte Elliott, 115 Cal.App.2d 536, 254 P.2d 135; Sorrels v. Sorrels, 105 Cal.App.2d 465, 468, 234 P.2d 103.)

In the divorce action the parties waived findings. Inferentially, the court found that other things were equal; that plaintiff was a fit and proper custodian; that the welfare of the children required she have their custody. It awarded custody of Denise and Hans, then 12 and 4 years of age, respectively, to plaintiff with the right of reasonable visitation to defendant, including possession of the children on alternate Sundays and holidays. At the hearing of August 1957, the court specifically found that both parents were fit and proper persons to have custody of the children. There has never been any question as to the fitness of either parent. Nevertheless, having found the mother to be a fit and proper person, the court changed the custody award of this 6-year-old boy, taking him away from his mother and giving him to his father, stating as its only reason that since the boy's 14-year-old sister had expressed a preference to live with the father it was for the best interests of both children that they remain together under the custody of the same parent, chosen by the older child. The court did not say in what way the interests of this young child would be benefited by removing him from the loving care of his mother in order that he might be with his teen-age sister in the home of the father where he would have no maternal care. We do not think a teen-ager's influence is superior to that of the natural mother in guiding a child through its formative years. Defendant testified he had a four-bedroom home; Denise has a private bedroom, and he sleeps with Hans; he has no housekeeper to care for the children; on Mondays he is with both children all day; on most other days Denise goes to the hospital and to his office with him, and Hans is picked up by his (defendant's) sister and taken to her home.

In Ashwell v. Ashwell, 135 Cal.App.2d 211, 286 P.2d 983, the interlocutory decree awarded the custody of four children between the ages of 2 and 6 to the mother. During the interlocutory period the trial court changed the custody to the father. Reversing, the court stated (135 Cal.App.2d at page 213, 286 P.2d at page 984):

‘If the order is to be supported upon the ground alleged in the notice of motion it can only be because, if such findings had been made, they would have been sustained by the evidence, for, unless that be so, then it seems clear to us that the change in custody constituted an abuse of discretion in view of the previous and recent adjudication that Norma was a fit and proper custodian and that the welfare of the children required that she have their custody and control; that is, there must be sufficient evidence that a change had taken place after the granting of the interlocutory decree and that thereby the welfare of the children was endangered. Munson v. Munson, 27 Cal.2d 659, 166 P.2d 268; Prouty v. Prouty, 16 Cal.2d 190, 193, 105 P.2d 295, 297—there the court said: ‘It must be borne in mind that in every proceeding to modify a provision for the custody of a minor child the burden is on the moving party to satisfy the court that conditions have so changed as to justify the modification.’ [Citations]—‘until some change of circumstance arises which makes a modification of the former order of custody advisable from the point of view of the welfare of the child, the court will give effect to the former order and will refuse to make any modification of such order.’'

‘In the case of a child of tender years, experience has taught that in the vast majority of cases there is no one who will give such complete and selfless devotion, and so unhesitatingly and unstintingly make the sacrifices which the welfare of the child demands, as the child's own mother. The record herein abounds in evidence showing the anxious desires of a mother to care for her child. Under such circumstances fairness alone requires that she and not a third person be allowed the opportunity to carry out the trust she as a mother owes her child. Juri v. Juri, 69 Cal.App.2d 773, 778, 779, 160 P.2d 73; In re Estate of Lindner, 13 Cal.App. 208, 212, 109 P. 101.’ Robertson v. Robertson, 72 Cal.App.2d 129, 135, 164 P.2d 52, 56. Reversing an order awarding the custody of two children, 4 and 5 years of age, to the father, the court in Juri v. Juri, 69 Cal.App.2d 773, at page 780, 160 P.2d 73, at page 76, stated:

‘[W]here the ability, willingness and eminent fitness of a mother to take custody of her infant offspring are unquestioned, as is the case before us, we believe that in denying these children an opportunity to know, to learn to respect and to receive the care and affection of their mother for at least a part of each year, the trial court abused its discretion.’

In Washburn v. Washburn, 49 Cal.App.2d 581, 122 P.2d 96, the divorce decree gave custody of a girl 9 and a boy 15 to the mother. A modification order was made giving custody to the father. On appeal the order was reversed. The court said (49 Cal.App.2d at page 586, 122 P.2d at page 99):

‘So far as the evidence goes there is not one iota to indicate that the children did not have the best of care from their mother * * *. The father is active in this business and employs a housekeeper * * * and so if the children were to reside in his home they would be largely under the immediate care of a housekeeper or of a governess if he employed one, as he stated he would if awarded the custody.’

Here, the boy is of an age which imperatively requires that he have the care and attention of his mother rather than that of a teen-age sister or third persons, and this is a compelling reason for separating him from his sister with whom he has few, if any, interests in common.

Defendant contends the evidence supports a change in circumstances warranting the modification of the custody order by reason of plaintiff's sale of the family home, in which she and the children were living at the time of the interlocutory decree, and moving with the children to Oakland. He argues the move was made for the purpose of depriving him of his visitation rights and in order to be near the man whom she subsequently married. There was no injunction in the decree which purported to govern where the mother and children should reside. Simply because plaintiff moved her residence, remarried, and practiced her profession half-time while Hans was in school does not warrant an inference that she has neglected Hans. A parent to whom custody has been awarded has the right to select any reasonable place in which the child shall reside with him. 17A Am.Jur. 23, § 831. Defendant is a man of means and the distance to Carmel is not so great as to work a hardship on him in arranging transportation in order to have Hans with him during visitation periods.

The court in effect held that a 14-year-old child can determine not only where she is going to live and with which parent but that she also can determine who shall have the custody of her 6-year-old brother, thus pre-empting the statutory and natural right of a fit mother to rear her child. As counsel for plaintiff states, ‘This determination flies in the face of common sense and the natural law.’

There is no evidence of a change in circumstances as to Hans to warrant the modification order and it can only be sustained, therefore, on proof of facts from which it can be inferred that his welfare requires that he be removed from plaintiff's custody. The only other evidence offered by defendant bearing on Hans' welfare was his testimony concerning the material advantages he is able to offer the child. This is not sufficient to warrant modification of the order. Plaintiff is able to offer equal advantages. She has remarried and her husband has indicated an interest in the welfare of both children. Their home is in a good residential area in Carmel. Hans was settled in school there and apparently doing well. He attended the local Japanese Presbyterian Church. Plaintiff now practices her profession only half days and is able to be home with Hans all during the time he is not in school. There is no evidence of the possibility that Hans will develop a hostile attitude toward his father if allowed to remain in the home of his mother. The record reveals Hans evidences a normal, natural love for both parents. There is nothing in the record showing any relationship between the 14-year-old girl and the young boy, 8 years her junior, that would justify an inference that her companionship would be better for Hans than the constant love, devotion, daily care, and companionship of his mother. Nor is there anything which justifies depriving the mother of the love, comfort, and rearing of Hans.

Defendant's home conditions have not greatly changed since the interlocutory decree. Besides his own practice as a physician he works at a Japanese hospital. He does not employ a housekeeper. He would be with Hans very little of the time. He is dependent upon his relatives, who have homes and children of their own, and the older girl to assist in the care of Hans. There is nothing in the record indicating that the welfare of Hans requires or justifies a change in the previous order awarding his custody to plaintiff. It was an abuse of discretion to take this 6-year-old boy from the custody of his mother and place him in the custody of his father solely so that he might be with his 14-year-old sister.

Appeal from Order re Attorney's Fees and Costs

On September 24, 1957, plaintiff applied for an allowance of attorney's fees for services performed in connection with the application of defendant for an order giving him custody of the children and for an allowance of costs and attorney's fees for services on her appeal from the order of August 29, 1957. The application for attorney's fees for past services performed was submitted on affidavits of plaintiff and defendant. On November 6, 1957, the court ordered defendant to pay $100 attorney's fees to counsel for plaintiff for services rendered to the date of the order and denied the application for costs and attorney's fees on plaintiff's appeal on ‘the grounds that the appeal has not been taken in good faith.’ Plaintiff appeals from this order.

While the allowance of $100 appears to be extremely meager, we cannot say the court abused its discretion in not allowing a greater sum. The court erred in denying plaintiff's application for an allowance of costs and attorney's fees on the appeal from the order of August 29, 1957. From what has been said, it appears that the appeal was meritorious and taken in good faith. It is plain that the refusal to make plaintiff a reasonable allowance to prosecute the appeal on the ground it had not been taken in good faith was an abuse of discretion. Kyne v. Kyne, 74 Cal.App.2d 563, 568–569, 169 P.2d 272.

The parts of the order of August 29, 1957, appealed from are reversed. The order of November 6, 1957, insofar as it allows $100 attorney's fees, is affirmed; insofar as it denies plaintiff's application for costs and attorney's fees on appeal, it is reversed with directions to allow plaintiff a reasonable sum therefor. Appellant shall recover her costs on appeal.


1.  The recommendation of the court investigator was: ‘That the care, custody and control of the minor children, Denise and Hans Goto, be retained by the mother at this time; that the father be allowed rights of liberal visitation and that, because of the distance between the two homes, the father have physical custody on one weekend each month, as well as one week of the Christmas vacation, one-half of the Easter vacation, and one-half of the summer vacation. ‘That neither parent say anything derogatory concerning the other in the presence of the minor children, and that the children not be taken out of the State of California without further order of Court.’ The investigator said: ‘The mother is employed on a half day basis at a nearby Army base and has a net income of $250. per month. The stepfather is employed as a field man with the Chester Packer and Wheeler Nurseries in Watsonville, California, 30 miles distant from the home, and has an average income of $10,000. per year. * * * The father has not remarried and care of the children during their visits with him is by the paternal aunt or the paternal grandmother. * * * ‘Since her [the mother's] remarriage she has a good home for the children and she is doing everything possible to provide the proper atmosphere for their growth and development. * * *

VALLEÉ, Justice