Opinion
Page __
__ Cal.App.2d __ 212 P.2d 68 CLARKE v. CLARKE. Civ. 17369. California Court of Appeals, Second District, Second Division Dec. 13, 1949.Subsequent opinion 217 P.2d 401.
Rehearing Denied Jan. 4, 1950.
[212 P.2d 69] Clarence Hansen, Los Angeles, for appellant.
Vaughan, Brandlin & Wehrle, Los Angeles, and Warren J. Lane, Los Angeles, for respondent.
WILSON, Justice.
An interlocutory judgment of divorce was entered on May 10, 1948, in favor of plaintiff, among other things awarding custody of the minor daughter of the parties to defendant except during July, August and the first two weeks of September of each year, during which time plaintiff was to have custody. Prior to the commencement of the action the parties had entered into an agreement that the custody should be awarded as recited in the interlocutory judgment. The parties further agreed that neither should take the child outside the state of California without the written consent of the other, but this condition was not included in the interlocutory judgment. Thereafter defendant went to New York City where she resided for a period of time leaving the child in Los Angeles in the custody of plaintiff who, jointly with Mrs. Pinder, defendant's mother, cared for the child. Subsequently, with the consent of plaintiff, Mrs. Pinder took the child to New York where they, with the child's mother and the latter's sister, resided in an apartment. Plaintiff having ascertained that defendant was engaging in illicit relations with one Korf, went to New York and brought the child to Los Angeles. Defendant returned here and upon her application a writ of habeas corpus was issued to determine the custody of the child. Plaintiff countered with an affidavit upon which an order was issued directing defendant to show cause why custody should not be awarded to him and defendant be restrained from removing the child from his custody or from the county of Los Angeles. After a hearing an order was made, on April 7, 1949, modifying the order made in the interlocutory judgment by awarding custody to plaintiff for a period of six months after the date of the order subject to defendant's right of reasonable visitation; thereafter defendant to have custody of the child. Until further order of the court both parties were restrained from removing the child from the state of California for a period of six months. Plaintiff has appealed from that order.
The result of the order is that (1) plaintiff is not permitted to have custody of the child at any time; (2) he is not given the right to visit her at all; (3) defendant may take her out of the state when she chooses and is not required to return her.
Plaintiff testified that he went to New York and observed Korf calling in the evening at the apartment where defendant resided and not departing until the following morning. He thereupon took possession of the child and brought her to Los Angeles. Defendant's mother and sister, who resided in the same partment, both testified that on many occasions Korf and defendant occupied the same room all night, and that the child slept in the same room; that Korf undertook to exercise parental control over the child, reproved and reprimanded her and undressed her on several occasions; that Korf said she was 'onery' and her will would have to be broken; that he stated 'if ever he had anything to do with this child, which he did except to, that he would see that I [Mrs. Pinder] and all the families on both sides would never see this child again.'
Defendant freely admitted that she had had sexual relations with Korf on many occasions in her room but denied that such conduct was in the 'presence' of the child; she admitted that Korf had slept in the same room with her when the child was there but asserted that the baby was asleep at such times.
It is in evidence that the child, who was more than three years old when such occurrences took place, was happy with her father and with Mrs. Pinder; that she disliked Korf intensely and did not want him to touch her.
[212 P.2d 70] Plaintiff testified that he had a home for his child; that her grandmother, Mrs. Pinder, would assist in caring for her; that he had made provision for her being in the sunlight, and that she would have proper care and attention.
Defendant's effort to show that plaintiff was an improper person to have custody of the child failed in its purpose. On cross-examination he admitted he knew certain persons whose names were mentioned who were known to be homosexuals. He stated that he knew them while engaged in theatrical work where it was impossible to avoid mingling with them. There was no evidence that he associated with them socially, that he visited in their homes, or they in his.
There was no evidence that conditions had changed after the entry of the interlocutory judgment of divorce insofar as plaintiff and Mrs. Pinder were concerned, but it did show that conditions that surrounded defendant and her mode of living had changed for the worse.
The meretricious relations of defendant and Korf had occurred while she was still the legal wife of plaintiff, since at the time of the hearing which resulted in the order appealed from the time for entry of the final judgment had not expired. The court was not justified in accepting as true and acting upon her statement that she intended to marry Korf after the entry of the final decree. The order should have been based upon conditions existing at the time it was made and not upon defendant's statement as to what she might do in the future.
The court has a wide latitude of discretion in awarding custody of minor children to one parent or the other. Such discretion is not unlimited. It is a legal discretion and may be reviewed upon appeal. The prime purpose of a custodial order is the best interest of the minor child. One who seeks to have an order for custody modified has the burden of proving that modification is justified by a change of conditions. Munson v. Munson, 27 Cal.2d 659, 670, 166 P.2d 268. To warrant the vacation of an order awarding custody the evidence must be clear and convincing that the welfare and best interests of the child will be directly promoted by the change. Johnson v. Johnson, 72 Cal.App.2d 721, 723, 165 P.2d 552; Washburn v. Washburn, 49 Cal.App.2d 581, 588, 122 P.2d 96.
No reason appears in the evidence, and in announcing its decision the court expressed none, (1) for depriving plaintiff of the custody of his child for two and one-half months each year, as provided in the agreement of the parties and in the interlocutory decree; (2) for not allowing plaintiff the right to visit the child while in the cusotdy of defendant; (3) for not ordering that the child should not be removed by either party from the state of California without the other's consent, as provided in their agreement.
The trial judge's amazing attitude with reference to defendant's licentious conduct is reflected in his remarks preceding his announcement of the order. He admired her frankness and condoned her acts as human and natural, and stated that the mother and her fiance, both before and following their marriage for a reasonable time, would be happier if the child were not with them. Their convenience appears to have been the chief element in the court's mind and sole reason for permitting custody to remain in plaintiff for six months. It is manifest that the court did not regard him as an improper person to have custody of his child, otherwise he would not have been permitted to keep her for six months. It is also clear that the order was made for the accommodation and happiness of defendant and her paramour and without regard for plaintiff's rights or for the interest of the child.
Order reversed.
MOORE, P. J., concurs.
McCOMB, J., concurs in the judgment.