129 P. 467 | Cal. Ct. App. | 1912
This is an appeal from an order made after final judgment in a divorce proceeding, modifying the final decree affecting the custody of a minor child.
An interlocutory decree of divorce was duly made and entered July 1, 1909, in favor of plaintiff on the ground of extreme cruelty, which was made final on July 2, 1910. Pending the trial of the cause the parties entered into an agreement concerning their property rights in which they also agreed that each should have the "care, custody and maintenance of" their minor child, Dewitt Russell, six months of each year, during his minority. The agreement did not designate the months during which each was to care for the child. In the final decree the court adjudged as follows: "That the plaintiff is to have and she is hereby awarded the care, custody and maintenance of said minor child (then eight years old) six months in each year of his, minority; and that the defendant is to have the care, custody and maintenance of said minor child for a like period of six months in each year." It appears that thereafter, to wit, about July 5, 1910, plaintiff married Charles Rogers and now resides with him in the *459 city and county of San Francisco; that since said interlocutory decree said minor child has resided with plaintiff during the months of July, August, September, October, November, and December, and the balance of the year with defendant in the city of Fresno.
Defendant gave notice to plaintiff that, on June 5, 1911, he would move the court to modify the decree in said action "so that the custody, maintenance and education of the minor child of said parties . . . be awarded to defendant, with the right of said minor child to visit and be visited by plaintiff at such reasonable times as the court may determine, upon the ground that it is to the best interests of said minor child that he be placed in the care and custody of said defendant." The motion was heard on affidavits submitted by the parties and the court made the following order: "It is hereby ordered and adjudged that said motion of defendant be granted; and it is ordered that the said decree in said action heretofore filed herein be and the same is so modified that the custody, maintenance and education of said minor child be awarded to defendant, with the right of said minor to visit and be visited by plaintiff at such reasonable times as the court may determine, and the court does further order and adjudge that said minor child shall visit with and be with said plaintiff during all vacations, from the end of all school terms to the beginning of the succeeding school term of the school where said minor shall attend, and during such other time or times as may be reasonable, provided, however, that the actual attendance of said minor at school shall not be unnecessarily interfered with by such visits."
There was no evidence that either party was an unfit person to have the care and custody of the child, and as to the question whether it would be to the best interest of the child to be chiefly cared for by the defendant, the evidence was such as to leave it to the sound discretion of the court which we cannot say was abused. It appeared that, under the existing arrangement, the child was shifted from San Francisco to Fresno during the school term which caused a change of teachers and course of study, to the disadvantage of the pupil. There was some evidence submitted by plaintiff that while in the care of the defendant the child had been neglected in some respects and had not received the personal attention *460 or discipline which his health and mental and moral welfare demanded. But this was successfully met by a counter-showing made by the depositions of persons familiar with the treatment the child had received from defendant while in his custody. It was urged by plaintiff that the ground of divorce was such as to have called for a refusal to make the order. We do not know what facts were adduced at the trial which justified the court in finding the defendant guilty of extreme cruelty; nor can it be assumed that they were of such a character as to show defendant to be an improper guardian of the child. The parties agreed that each should share equally, during the minority of the child, in his care, custody, and maintenance. It is not likely that plaintiff would have voluntarily agreed to the arrangement if she had thought the defendant's treatment of her in any way disqualified him to have the care and custody of their child. Nor is the child of such tender age (he is now past ten years of age) as to imperatively require the attention of a mother, or that his father, as the evidence shows his household to be constituted, may not give the child needed attention. In short, there was evidence such as justified the decision of the court that it is for the best interests of the child that he should remain with his father and under his direction during the school year.
But plaintiff makes certain contentions independent of the questions of fact above described. It is claimed that the decree as to the custody of the child, having confirmed the agreement of the parties in respect of the custody of the child, is final and cannot be modified or changed and also that the agreement is a binding contract irrespective of the decree. The precise question here involved arose, under somewhat similar conditions, in the case of Black v. Black,
It is not claimed that the child here requires "preparation for labor and business" and hence appellant's picture of the horrors of child labor, too often seen, is inapt. The claim here of both parents is that the child "is of an age to require education" and to better promote this object seems to be their *462 chief concern. We do not think the sections found in the provisions of the Civil Code relating to guardians and wards in any wise control the power given the court under section 138 of the Civil Code, in actions for divorce, to "make such order for the custody, care, education, maintenance, and support of such minor children as may seem necessary and proper."
The order is affirmed.
Hart, J., and Burnett, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on January 24, 1913.