DAVIS v. DAVIS (1953)

This is an appeal from an order changing the custody of a child from its mother to its father.

In this action the appellant was given a divorce on her cross-complaint. The interlocutory decree, dated April 3, 1947, and the final decree dated April 7, 1948, awarded her the custody of the daughter of the parties. On March 14, 1950, a hearing was had on respondent's application for a change with respect to the right of visitation, and for a change of custody. An order was made modifying the decree with respect to the right of visitation, and continuing the other matter for further hearing on June 20, 1950. On that day, evidence was received and a further modification was made with respect to visitation; and the matter was again continued to December 19, 1950. On that day, the matter was continued indefinitely. On December 28, 1951, at the request of the respondent the appellant was ordered to show cause why she should not be found in contempt for disobeying court orders, and why the custody order should not be modified by awarding such custody to the respondent. After hearing this matter on January 11, 1952, the court, without making any findings or reciting any facts on which it was based, entered an order awarding custody of the minor to the respondent. This appeal from that order is presented on a clerk's transcript and on a settled statement.

The respondent testified that in October, 1951, he went to appellant's home in Taft on a day designated by the court's order to pick up their daughter, then four years old; that the appellant was not there and the daughter and appellant's three other children were in the care of a Mrs. Ward; that Mrs. Ward told him the child was ill and had a high temperature and stated that she did not know what to do as she did not know how to get in touch with the appellant; that he told Mrs. Ward he would take the child to a doctor and promised to call her and inform her of the child's condition; that he brought the child to Bakersfield and took her to a doctor for treatment; that the doctor said she had a temperature of 102° and diagnosed the case as bronchitis and intestinal flu; that the doctor treated the child and gave her penicillin shots every other day; that he called Mrs. Ward and told her the child was under the care of the doctor; that he kept the child for four or five weeks and during this period the appellant made no inquiry of him concerning the child; and that during the last week of the period he himself called the appellant and talked to her. He also testified that on the Saturday before Christmas he went to Taft to pick the child up but neither the child nor the appellant was at appellant's home. He later admitted that the preceding Saturday was the regular day for him to pick the child up, and that on that occasion he had not taken her because she did not want to go with him as she wanted to remain where the others were decorating a Christmas tree.

It appears from the evidence that after the appellant was divorced from the respondent she had married a man named White, and that they were being divorced. She testified that on the occasion in October, 1951, she suddenly got an opportunity to ride to Nevada with her friends Mr. and Mrs. Petty; that she hired a Mrs. Ward to stay with the children and went to Nevada to visit the man she was planning to marry when her interlocutory decree became final; that she picked Mrs. Ward from an ad in the newspaper and contacted her early in the morning of the day she left for Nevada; that she went to Nevada and returned with Mr. and Mrs. Petty; that she was not working at the present time except doing extra work as a waitress at the Taft Hotel; that during the summer she had worked as a waitress at the Taft Hotel and other places; that during March of 1950 she was in Long Beach working as a waitress a portion of the time, and that during this time the children were left with her mother; that she was away seven days on the trip to Nevada; that after she returned she talked to the respondent on the telephone and he told her he was keeping the child under the doctor's care; that she had several letters from the respondent regarding the child's condition and talked to him several times but did not go to his place to see the child because she was afraid they would get into an argument; that finally the respondent told her the child had been exposed to mumps and she decided the child must be well enough to come home; that she went to Bakersfield but could not locate either the respondent or the child; that she came back the next day and found the child with a neighbor and took her home; that she devoted her full time to the care of the children and preferred to work at night so she could spend the days with the children; and that she had allowed the respondent to take the child on nearly every weekend since October in an attempt to get along with him and avoid hard feelings. The respondent denied having written any letters to the appellant regarding the child's condition, or that he had talked with her on the telephone more than once. There is also a conflict as to whether the appellant returned from Nevada with the Pettys or came on the train, but she did come promptly when she received a telephone call from Mrs. Ward.

Mrs. Ward testified that she had had two years' nursing training and that she worked as a practical nurse; that she was employed by the appellant to stay with these children while the appellant was gone for seven days on a trip to Nevada; that this child had a cold when the appellant left; that the appellant gave her written instructions as to what to do about the children, gave her the names of two doctors to call should they become ill, and left a phone number in Wells, Nevada, if anything should happen; that the child was slightly sick on Friday but was apparently all right that evening; that she did not call a doctor because she did not think that was necessary, and she would not have done so had the child been her own; that the child had a high temperature on Suturday when the respondent came, and she asked him to take the child because she did not know what to do; that she tried to call the appellant at the number in Wells, Nevada, but no one there knew her by name; that she finally got the appellant by using the name of her intended husband and told her what had occurred; that the appellant stated she would return immediately by train and would arrive late Sunday afternoon; and that the appellant arrived on Monday, saying that her train was late and she had missed a bus.

Mrs. Petty testified that the appellant was a good mother to her children, gave them good care and affection and maintained a good home; that the appellant accompanied them to Nevada and returned with them; and that the appellant had stayed with them in Reno, except for one day when she went to Wells, Nevada.

It also appears that at the prior hearing on June 20, 1950, before the same judge, the respondent testified that for a period of over a year and a half the appellant had refused to let him see the child; and that he had tried numerous times to contact the appellant but was told she was out of town. The appellant admitted that she had not let the respondent visit the child because it upset her family routine, and because he had failed to make the required support payments. The respondent then testified that he had made support payments regularly until he could no longer keep in contact with the appellant, and further stated that he was ready and willing to continue payments. The mother of the respondent then testified that she lived with her son, that they had a three-bedroom apartment, and that she was able and willing to care for the child while the respondent was working.

An application for a modification of an award of custody is addressed to the sound legal discretion of the trial court and such an order will not be disturbed on appeal unless the record presents a clear case of an abuse of that discretion. Foster v. Foster, 8 Cal.2d 719, 68 P.2d 719. This discretion is not an arbitrary one and is controlled by fixed legal principles and the evidence produced. Section 138 of the Civil Code provides that neither parent is entitled to the custody of a minor child as a matter of right, and that where other things are equal a child of tender years should be given to the mother. It is well settled that where the court has originally determined that the mother should have such custody some change in conditions or some unusual circumstances must be shown to justify a change in that order, and the burden is on the one seeking the modification of an existing custody order to prove that conditions have so changed that a modification is justified. Prouty v. Prouty, 16 Cal.2d 190, 105 P.2d 295; Moon v. Moon, 62 Cal.App.2d 185, 144 P.2d 596; Juri v. Juri, 69 Cal.App.2d 773, 160 P.2d 73.

At the prior hearings the controversy over the matter of visitation seems to have been adequately disposed of by the modifications of the decree then ordered in that connection. At the final hearing there was no evidence sufficient to show any violation of the amended orders in that respect, and the court made no findings or order in that connection. There was no sufficient showing of any change of conditions, and it would seem that the order appealed from must have been based on the conclusion that the appellant was an unfit person to have such custody, or that the welfare of the child required such a change. There was no evidence which, under the authorities, would support a finding that the appellant was not a fit person to have the custody of the child, and the respondent makes no such contention. He does contend, however, that there is adequate evidence that the welfare of the child would be promoted by the change. In support of this contention it is argued that the evidence shows that the appellant was willing to make this trip to Nevada, leaving her children in the care of a woman she had not previously known; that the children were slightly ill when she left; that she did not remain in one place in Nevada, could not be reached there under her own name, and was finally found only by using the name of the man she was going to marry; that she had left the children at previous times; that she had been married three times; that she showed a lack of concern over the health and welfare of the child by making no effort to inquire about her child's health for some four weeks after she returned; that the respondent's concern for the child was shown by his care for the child and nursing it back to health, and by his efforts to locate and advise the appellant of the child's condition; and that the evidence shows that the respondent had a good home for the child.

The only evidence in the record on the real issues involved is that concerning this seven-day trip to Nevada. There is nothing in that evidence which would support a finding that the appellant is unfit to have such custody, or that she was guilty of neglect which could reasonably be supposed to affect the welfare of the child. Such short absences occur in normal homes with the best of parents. Even in such homes children become suddenly ill. This case was not out of the ordinary in this respect, and the appellant took about as much precaution as could be done by the ordinary parent. She left the child with a qualified nurse, gave written instructions as to what should be done for the child, gave the names of two doctors who were to be called in case of illness, and left the only phone number which was available in order that she might be called in case of an emergency. While the evidence is conflicting with respect to her immediately getting in touch with the child when she returned her explanation is more or less reasonable under the circumstances, and the most that can be said is that, knowing the child was under a doctor's care, she entrusted it to the respondent for some four weeks. If her confidence in the respondent was not justified, it would seem that this would seriously reflect on the order appealed from. Having in mind the applicable rules of law, we are of the opinion that an abuse of discretion appears, and that there is no substantial evidence which would support this modification of the previously existing order of custody. Sorrels v. Sorrels, 105 Cal.App.2d 465, 234 P.2d 103. Under that order the appellant had had custody of this young child for nearly five years. While there had been some controversy over the matter of visitation, when that matter was settled the respondent was content to let the issue as to a change in custody remain dormant for another year and a half. There is no evidence that the appellant had violated the visitation order during that period. Even the matter of the Nevada trip was not raised by the respondent until a few days after he had gone to take the child on the wrong weekend, and found that the appellant and the child were not at home. On the record before us, the respondent failed to meet the burden resting on him to prove such a change in conditions as would justify the order made.

The order appealed from is reversed.

BARNARD, Presiding Justice.

GRIFFIN and MUSSELL, JJ., concur.