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ROCHE v. ROCHE.*
The plaintiff sued for a divorce on the ground of cruelty and was granted an interlocutory decree. She appeals from the decree as entered directing her attack solely to the portion relating to the custody of the minor female child.
The complaint alleged that this child was of the age of eight years, that plaintiff was a fit and proper person to have its custody and control, and that thirty–five dollars a month was a reasonable sum to be awarded plaintiff for its support and maintenance. The answer pleaded that “said minor child Patricia Roche has been living with the mother of defendant for several years, and that she has not been living with plaintiff, and to remove said minor child from her present abode with defendant's mother would not be beneficial to said child.” The trial court found in general terms that the allegations of the complaint, including the paragraph relating to the fitness of plaintiff, were true. But the allegations upon which the prayer for alimony and an award for the support of the minor child were found untrue. As to the custody and care of the minor the trial court made a special finding reading:
“The best interests of the said minor child will be subserved by the following:
“That the joint control of said minor child be awarded to both parents, but it is hereby ordered that the physical care and control thereof, until the further order of this Court be awarded to the paternal grandparents, residing on a ranch near Turlock, California; and it is further ordered that plaintiff be granted the privilege of visiting said child whenever she desires.”
The appeal has been taken on the judgment roll alone and hence there is no evidence before us showing upon what facts these findings are based. Such being the case we must assume in support of the judgment that the evidence was sufficient to show that the “best interests” of the minor required the disposition made in the decree. The appellant alone has appeared and filed a brief. When the cause was called for hearing we were informed that the respondent had joined the military services and was unable to appear or procure counsel to represent himself.
In her attack upon this portion of the decree the appellant relies upon Stever v. Stever, 6 Cal.2d 166, 56 P.2d 1229; Eddlemon v. Eddlemon, 27 Cal.App.2d 343, 80 P.2d 1009; In re White, 54 Cal.App.2d 637, 129 P.2d 706, and Guardianship of McCoy, 46 Cal.App. 2d 494, 116 P.2d 103. The cases are all to the same purport and rest upon the accepted statement as a legal principle that “before the court can deprive the mother of her right to the minor's custody and give her into the charge of strangers, there must be a finding that the mother is an unfit person to have the custody of her child.” Stever v. Stever, supra [6 Cal.2d 166, 56 P.2d 1231]. No case has been cited to the effect that when the trial court has found as a matter of fact, and upon evidence presumably sufficient to support the finding, that “the best interest of the child in respect to its temporal and its mental and moral welfare” (Civil Code, section 138) requires that it be placed temporarily in the care of a third party, or of an institution, the award of the legal “custody” to the parents is not all that the rule of these cases requires. It should be noted that the code section authorizes the trial court to “make such order for the custody, care, education, maintenance and support of such minor children as may seem necessary or proper, and may at any time modify or vacate the same.” (Emphasis ours.) The rule of the cited cases is that, because of this presumption (one which is not found in the statutes), the parent has the legal right of “custody” unless found to be unfit. But, whatever presumption may be invoked here, it is clear that it is a rebuttable one because section 1963 of the Code of Civil Procedure declares that all presumptions other than those enumerated in section 1962 are disputable “and may be controverted by other evidence.”
Here the question of the best interests of the minor was put in issue by the complaint and the answer and the finding of the trial court cannot be treated as a conclusion of law. It is a finding of fact on a material issue and, since none of the evidence has been brought up, we must assume that the facts proved fully supported the finding. The effect of the decree is that the parents are given joint legal custody of the minor, but that, for reasons which are not disclosed by the record, she should be placed in the care of another, until the further order of the court. It may be that the evidence showed that, though the appellant is morally fit to have the joint legal custody of the minor, she is not physically able to provide for it the care and education which the circumstances require, and that the father, who is also given legal custody, is unable to give the proper care to the minor, because of his absence in military service. But if the conditions and circumstances are changed, the appellant is permitted to apply to the trial court for a modification of the order since section 138 of the Civil Code expressly grants that right. The appellant requests this court to modify the decree by awarding her full custody and control of the minor, and to direct the trial court to award her a reasonable sum for its support and maintenance. In view of the common practice of the divorced wife seeking such awards in order to participate in the pay of those engaged in the military service, this court is disposed to let appellant pursue her remedy in the trial court, where all the facts and circumstances may be inquired into.
The judgment is affirmed.
I dissent as I can find no justification for the portion of the decree relating to the custody and control of the minor child.
Plaintiff, a resident of San Francisco, sought a divorce and the custody of her eight year old minor daughter. She alleged that she was “a fit and proper person to have the custody and control of said minor child”. The answer expressly admitted that plaintiff was a fit and proper person to have such custody and control and the trial court so found. Defendant did not allege that he was a fit and proper person to have such custody but he alleged the facts set forth in the majority opinion. Upon this state of the pleadings the trial court also made the so–called “best interests” finding, and awarded “joint control” to both parents but awarded “physical care and control * * * to the paternal grandparents, residing on a ranch near Turlock, California”. The decree did not use the word “custody” but it is obvious that the decree had the practical effect of depriving plaintiff of the care, custody or control of said minor.
The authorities cited by plaintiff declare the salutary rule that “before the court can deprive the mother of her right to the minor's custody and give her into the charge of strangers, there must be a finding that the mother is an unfit person to have the custody of her child.” Stever v. Stever, 6 Cal.2d 166, 170, 56 P.2d 1229; see also Newby v. Newby, 55 Cal.App. 114, 202 P. 891; Eddlemon v. Eddlemon, 27 Cal.App.2d 343, 80 P.2d 1009; In re White, 54 Cal.App.2d 637, 129 P.2d 706; Guardianship of McCoy, 46 Cal.App.2d 494, 116 P.2d 103; In re Mathews' Estate, 174 Cal. 679, 164 P. 8. These authorities announce a rule of substantive law as well as a presumption. The presumption referred to in the authorities played its part in such cases as Stever v. Stever, supra, and Newby v. Newby, supra, where the record on appeal contained neither evidence nor finding regarding fitness. In the present case, however, the trial court made an affirmative finding of fitness and all reference to a presumption with respect to fitness appears to be beside the point in the present discussion.
When the trial court determined and found in the present case that plaintiff was a fit and proper person to have the custody of her minor daughter, the rule of substantive law enunciated in the cited cases required that the custody of the minor be awarded to plaintiff rather than to the child's paternal grandparents. Under these circumstances, the so–called “best interests” finding became a wholly immaterial finding. As was said in Eddlemon v. Eddlemon, 27 Cal.App.2d 343, at page 344, 80 P.2d 1009, at page 1010: “The question here presented has been before our courts in the cases of Newby v. Newby, 55 Cal.App. 114, 202 P. 891, and Stever v. Stever, 6 Cal.2d 166, 56 P.2d 1229, in both of which it was held that before a court can take the custody of a minor child under the age of fourteen years away from its parents and place it in a stranger (in the Stever Case, in its grandparents) it must find that the parent seeking custody of the child is unfit to have such custody.” And in Re White, 54 Cal.App.2d 637, at page 640, 129 P.2d 706, at page 708, it was said: “The right of a parent to the care and custody of a child cannot be taken away merely because the court may believe some third person can give the child better care and greater protection. One of the natural rights incident to parenthood, a right supported by law and sound public policy, is the right to the care and custody of a minor child, and this right can only be forfeited by a parent upon proof that the parent is unfit to have such care and custody.” See also In re Mathews' Estate, 174 Cal. 679, 164 P. 8.
The only theory upon which the decree herein may be affirmed is that the law permits parents, who are found by the trial court to be fit and proper persons, to be deprived of custody and control of their children whenever the trial court believes and finds that some third person can give the children greater advantages. I find no support for this theory in reason or authority. On the contrary, any such theory appears to be out of harmony with the authorities cited and to be violative of every accepted concept of the natural and legal rights of such parents.
In my opinion, the portion of the decree relating to the custody and control of the minor child should be reversed.
NOURSE, Presiding Justice.
STURTEVANT, J., concurs.
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Docket No: Civ. 12642.
Decided: April 11, 1944
Court: District Court of Appeal, First District, Division 2, California.
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