204 P. 426 | Cal. Ct. App. | 1922
Action for divorce. Plaintiff had judgment by default, and an order awarding to him the care and custody of two minor children, Milford, a son, fourteen years of age, and Evelyn, a daughter, aged nine years. This is an appeal from an order denying defendant's motion to set aside the default judgment entered herein and refusal to disturb the order made in the interlocutory decree awarding the custody of the minor children to plaintiff. It is admitted that the question of amending the decree as requested by defendant being discretionary, and there being conflicting affidavits on file touching the qualifications of the parties to the action, that an appeal from this portion of the order awarding the custody of the children to the plaintiff would be of no avail.
[1] The attack upon the order appealed from is therefore limited to that portion thereof refusing to set aside the default of defendant. It is apparent from a reading of the record that defendant never intended to contest the divorce action or make any defense therein. The suit as originally filed charged the defendant with cruelty and adultery. Defendant failed to plead within the time allowed by law and her default was regularly entered. Thereafter by stipulation the default was set aside and defendant filed a demurrer. This demurrer was subsequently, on October 6, 1919, overruled by consent, and defendant was given five days to answer. At the same time the count charging her with adultery was dismissed, the remaining charge being that of cruelty. From this date defendant had her time to plead extended from time to time by stipulation until January 3, 1920, but was in default from that date until the trial, July 12, 1920, on which date her default was again entered. At the time of the overruling of the demurrer a stipulation was entered into between the parties to the effect that defendant might have the custody of the minor daughter, Evelyn Anderson. The trial court, however, disregarded this stipulation and awarded the custody of both minor children to plaintiff. Appellant here contends that in failing to answer she relied upon the stipulation had with plaintiff *89
regarding the custody of the child, and was of the belief that a decree would be entered in conformity therewith, and that as the decree was in violation of the stipulation, the judgment should be set aside and she should be permitted to answer. We do not consider that these reasons warrant the setting aside of the decree. [2] While parents have a legal right to contract with each other as to the custody and control of their offspring (Sargent v. Sargent,
The order appealed from is affirmed.
Richards, J., and Kerrigan, J., concurred.