98 P. 1044 | Cal. | 1908
In 1903 the superior court of San Benito County granted plaintiff a divorce from defendant upon the ground of his extreme cruelty. In accordance with an agreement of the parties at that time entered into, the custody of the children was given to the defendant, "subject to the further order of the court," and defendant was "required to maintain and educate them." Defendant moved with the children to the county of Santa Clara, and there remarried and continued to reside. In 1906 this plaintiff made application to the court of San Benito County to award to her the custody of the children, upon the ground that the father had proved, by reason of his cruelty to them, to be an unfit and improper person to have their charge. To this application was joined a request for an allowance of thirty dollars per month for their maintenance. The probation officers of Santa Clara County at about the same time had taken charge of the children and placed them temporarily in the Orphans' Home at San Jose, their father having been arrested for cruelty to them.
These matters were disclosed in evidence before the superior court of San Benito County at the hearing of this application, with further testimony of the cruelty which the father had practiced upon the children. The court then made its order in accordance with the prayer of the petition. Upon appeal the contention is made that the order decreeing payment of a monthly sum for the maintenance of the children was in excess of the jurisdiction of the court, and therefore void, because in the original judgment and decree in divorce no provision had been made for such maintenance, and there was no reservation of the right to make such provision in the future. This contention, however, is contrary to the facts. By the agreement of the parties, adopted by the court, the wife did relinquish any claim to maintenance or support for herself, but she did not attempt to do this upon behalf of her children, and if she had done so the act would have been nugatory. A wife may abandon or forfeit her own claims to be *646
supported by or from the estate of her divorced husband, but she cannot forfeit or abandon the claims of the children. (Ex parteGordan,
This court had occasion, in the recent case of Harlan v.Harlan, ante, p. 341, [
It is made to appear that an application for letters of guardianship of the persons of these neglected children was pending in the superior court of the county of Santa Clara at the time the order here appealed from was made by the superior court of San Benito County. Upon this appellant bases an argument to the effect that the superior court of Santa Clara County had acquired jurisdiction and that the superior court of San Benito County was, therefore, without power to act. To this proposition is sought to be applied the case of Younger v. Younger,
The order appealed from is, therefore, affirmed.
Lorigan, J., and Beatty, C.J., concurred. *647