ANGELA M. WHITE, Appellant, v. MCDONALD WHITE, Respondent.
Civ. No. 14949
Second Dist., Div. Two.
Oct. 29, 1945.
November 19, 1945
71 Cal. App. 2d 390
McComb, J., and Fox, J. pro tem., concurred.
A petition for a rehearing was denied November 19, 1945, and appellant Danziger‘s petition for a hearing by the Supreme Court was denied December 20, 1945.
George I. Devor for Appellant.
Gerald E. Kerrin and James C. Bone for Respondent.
MOORE, P. J.—The question for decision is whether the trial court abused its discretion in relieving a husband of the
Following the entry of the interlocutory decree awarding to appellant custody of the daughter, Nancy, she was ordered on July 31, 1940, not to remove the child from Southern California. On May 23, 1944, pursuant to her application an order was entered permitting the mother to remove Nancy from the state upon three conditions, namely, (1) the current school term must first be completed; (2) the father must be continuously advised of the address of his daughter‘s domicile; (3) the wife must cooperate in making reasonable arrangements for the father to visit his child.
Pursuant to an order to show cause on October 19, 1944, appellant was adjudged “guilty of contempt of court and until such time as plaintiff purges herself of contempt and returns the child to California, defendant will be relieved of the obligation of supporting the minor child.” The quoted order was upon a review of the contempt proceeding by this court held to be valid (Olcott v. Superior Court, 68 Cal.App.2d 603 [157 P.2d 36]).
Notwithstanding the foregoing events appellant boldly contends that her sins and derelictions should not be visited upon her innocent child; that, although she had contemned the orders of the court, the chancellor should have made provision that she should suffer no financial discomfort despite her disobedience of a decree in equity. Such contention is based upon wholly selfish considerations. She is entitled to no more than the orders of the court provided for her. The mother is charged equally with the child‘s father to protect, nurture and educate their infant progeny. (
She now argues for her own advantage while pretending an interest solely for the child. But protestations in behalf of the daughter are unavailing for the reason that in the absence of a showing that the child is in need she will not be considered a party to such a proceeding. That showing was not made. As a plea for her own interests appellant‘s brief is a vain clamor, for it does not disclose any hardship to have been suffered by appellant. On the contrary she is basking in the chosen liberty of a new life, free from the agencies of the superior court of this state, both of which she preferred rather than compliance with its judgments. The order of which she now complains, viz., withholding payment of monthly sums from her until such time as she purges herself of contempt and returns the child to California, is not capricious, arbitrary or unreasonable but in view of the record was made in the exercise of a sound discretion.
In support of her thesis that “decency demands that the father perform the duty of supporting his own child” appellant cites Laumeier v. Laumeier, 237 N.Y. 357 [143 N.E. 219, 32 A.L.R. 654]; Zirkle v. Zirkle, 202 Ind. 129 [172 N.E. 192]; Arbuckle v. Jones, (Ill.App.) 11 N.E.2d 867; Metson v. Metson, 56 Cal.App.2d 328 [132 P.2d 513]. They are not pertinent. Mrs. Laumeier brought an action in New York on behalf of her post-divorce-born child notwithstanding the divorce had been granted in Missouri. At the time of the Zirkle decree in Indiana the wife resided in Illinois and she was not required to keep the child within the court‘s jurisdiction. The Arbuckle case announces nothing more than the duty of a husband to support his child even though the wife had disobeyed the decree. The Metson case involved the contention that the court had no jurisdiction to entertain the application of the wife for extra moneys to pay for dental services in the absence of an allegation from her petition that the allowance awarded in the decree was insufficient. After stating that it was not necessary for “the evidence” to be alleged in such petition, the court observed that the divorce court retains “continuing jurisdiction to modify or alter its
Inasmuch as the order appealed from was within the discretion of the court, it is an effectual modification of the decree and is in fact an adjudication of appellant‘s contempt and a punishment therefor.
The order is affirmed.
Wilson, J., and Fox, J. pro tem., concurred.
A petition for a rehearing was denied November 16, 1945, and the following opinion was thereupon rendered:
THE COURT.—Without the slightest pretense of contrition or conciliation for her flouting the order of the court plaintiff, still ensconced in her Pennsylvania home with her child by her side, demands through her counsel a rehearing to the end that it might be adjudged by this court that she had been guilty of only a technical contempt of court and hence her deprivation of the monthly payments was unjust. The situation may have been better understood if we had set forth even more fully the history of appellant‘s litigious efforts to effect her purposes.
Following the events narrated in the second paragraph of the opinion, appellant accompanied by Nancy departed from California. On September 15, 1944, defendant filed his affidavit setting forth that he had appealed from the order of May 23, 1944, but that plaintiff had removed Nancy from California to the home of her new husband at Cheney, Pennsylvania. Pursuant to the order to show cause issued upon such affidavit hearing was had thereon at the same time with plaintiff‘s motion for an order requiring defendant to pay sums for attorney‘s fees and costs. After granting her motion the court made the order quoted in the third paragraph of the opinion, which is the order appealed from. The affidavit of defendant before the court at the time contains the averment that pending the appeal of defendant from the order of May 23, 1944, and without further order of the court and without the knowledge or consent of defendant, plaintiff took Nancy out of California. Just prior to the time of adjudging plaintiff guilty of contempt the parties stipulated (1) that plaintiff and minor child are out of California; (2) that the record discloses that plaintiff had no authority
While it is true that there is no evidence that Nancy was removed from this state prior to the close of the school term, yet plaintiff knew that defendant had taken appeal from the order of May 23rd. The language of
This court decided the Olcott case on March 29, 1945. Although that was a determination of the validity of the order now on appeal, without deigning in any respect to comply therewith plaintiff proceeded with the present appeal as though the only question involved was whether a father is under any and all conditions solely responsible for the support of his child. It is conceded that as between the parents under ordinary circumstances, where the parents both have separate estates, or the father only has his separate estate, or there is no fund except the community estate or earnings, and a separation occurs, the father will be obliged to make provision for the minor children. But this is not an ordinary case. The child was born in Los Angeles County and had been reared there from birth. All of her relatives including all grandparents reside in the same community. When the question of custody first arose the parties stipulated that the court might include in its order that defendant visit Nancy on all Wednesdays, take her to his own home every other Friday to remain until Sunday and might have her at Thanksgiving and for the summer vacations, so long as he made “some plan for some member of his family or friends to assist him in caring for the child,” and that she should not be taken out of Southern California. Such evi-
That the trial court did not abuse its discretion in making the order is clear.
The contention that the adjudication of contempt became functus officio upon the affirmance by this court of the order of May 23 is without merit. The various orders affecting the conduct of these parties have no relevancy except to disclose the necessity of imposing some hardship upon plaintiff for the free rein she takes and for her evident disregard of defendant‘s rights which the court below has attempted to protect. The order before us might in different words have been made even if there had been no former order of contempt. Its primary purpose was to deny plaintiff the benefit of defendant‘s assistance so long as she keeps Nancy out of this state. That she had exhibited a recalcitrance before the order of September 15 is merely some of the evidence in support of the order. The authorities cited (Fremont v. Merced Mining Co. (1858), 9 Cal. 18; Canavan v. Canavan, 18 N.M. 640 [139 P. 154, Ann. Cas. 1915D 1007, 51 L.R.A.N.S. 972]; State v. Neveau, 236 Wis. 414 [295 N.W. 718]; Salvage Process Corp. v. Acme Tank Process Corp., 86 F.2d 727 (C.C.A. 2); Republic Electric Co. v. General Electric Co., 30 F.2d 99, 100) are not pertinent. Plaintiff is not here on an order convicting her of violating an injunction. It is merely an order relieving defendant from the necessity of making the monthly payments.
Rehearing denied.
Appellant‘s petition for a hearing by the Supreme Court was denied December 20, 1945. Carter, J., voted for a hearing.