254 P. 945 | Cal. | 1927
THE COURT.
This is an appeal from an order of the superior court of the county of Los Angeles modifying a final decree of divorce. It appears that the parties hereto entered into an agreement on January 23, 1922, at which time they were living separate and apart, wherein and whereby it was agreed that the custody of their two minor children should be relinquished to and vested exclusively in the mother of the appellant herein. Subsequently, and on May 23, 1922, the appellant instituted this action for a divorce and respondent suffered her default to be taken. The interlocutory decree *722 entered in favor of the appellant was silent as to the custody of said children, the complaint not having requested relief in this respect. On October 31, 1923, a final decree of divorce was granted to the appellant and thereafter, and on January 29, 1924, the respondent filed an affidavit looking to a modification of said final decree of divorce. After hearing, the trial court made an order modifying said final decree of divorce so as to give to the respondent herein the custody of said minor children on alternate week-ends and during one-half of the regular school vacation. This appeal was thereupon prosecuted and thereafter placed upon a special calendar of this court upon an order to the respondent to show cause why said order modifying the final decree of divorce should not be reversed, or that such order be made as might be meet in the premises. At the time of the placing of said cause upon said calendar, and the entry of said order it appeared that the appellant's brief had been filed herein, but that no brief on behalf of the respondent had been filed, although the time for the filing of such brief under the rules of this court had long since expired. Upon the calling of said special calendar the order to show cause issued herein was submitted.
The order of the lower court modifying the final decree of divorce so as to give the custody of the two minor children to the respondent at specified intervals of time finds support in the provisions of section 138 of the Civil Code. Applications for such modification of custody are addressed to the sound discretion of the lower court and the conclusion it reaches will not be disturbed unless the record presents a clear abuse of that discretion. (Black v. Black,
The case of Sargent v. Sargent,
For the foregoing reasons the order appealed from is affirmed. *724