Horsley v. Horsley ( 1946 )

DORAN, J.

This is an appeal from an order of the Superior Court of Los Angeles County awarding custody of the two minor children of the parties to the mother during the school months of the year and to the appellant father during the summer months. For a number of years prior to the making of the order appealed from custody had been in the father.

The parties were married in 1934. The two children, a boy and a girl, were aged about 9 and 10 years, respectively, at the time-of the hearing which resulted in the order appealed from. In 1937 the father brought an action for divorce in the Superior Court of Los Angeles County upon the ground of desertion. At the trial of the action the mother dismissed her cross-complaint, and after hearing evidence, the trial court denied plaintiff father a divorce. Thereafter the father secured a divorce in Nevada, remarried in 1940, and now resides with his present wife in Los Angeles.

The first order of custody shown in the record, made March 15, 1938, and based upon a recommendation of a court investigator, provided “that the father continue with the custody . . . that the mother may visit the children every Sunday morning . . . provided some third party is in the home at the time.” Prior thereto, apparently, the children had been in the father’s custody. At the time said order was made, or shortly thereafter, the father placed the children in a home known as the California Kiddie Home.

In August, 1939, the mother made an application for modification, asserting that the plaintiff “is now living in the City of Reno, Nevada. Children are now in a public institution.” It was then ordered that the father continue with the custody and that the children remain in the California Kiddie Home until after further order, and that the parents might visit the children in accordance with the rules and regulations of that home..

In April, 1944, plaintiff father having sought modification of the existing custody order, the matter first came before the trial judge who made the order herein appealed from. It was at this time ordered that the children be placed in the Maude Booth Home in Los Angeles; that the parents alternate in having the children with them at such times as the children were permitted to leave school, and that “for this purpose the parents have joint custody of said children . . . without prejudice of amendment as to the custody of said children after a period of six months. ...” In July, 1945, a further order was made that “custody of the children is now awarded to plaintiff until September 4, 1945, without prejudice.”

On August 31, 1945, after hearing, upon application of the mother, the order herein complained of was made. This order provided that the mother “shall have the custody . . . during . the school session months of each year, and that the plaintiff shall have custody of said children during the summer months . . . and this arrangement shall continue until the further order of the court. ’ ’

It is contended in substance that the last-mentioned order is erroneous, in that by previous orders it had been conclusively determined that the father was a fit person and that the welfare of the children would be best served by placing them in the father’s custody; that no showing was made which would warrant a change in custody; and that from the evidence adduced it affirmatively appears that the best interests of the children require that custody be continued in the father.

The parties hereto were before the same trial judge on two previous occasions in connection with the same matter. It is well settled that orders relating to the custody and. care of minors in such circumstances are not final. The question on each and every occasion is always addressed to the discretion of the trial court. And unless that discretion is abused, the action will not be disturbed on appeal. The burden in that regard is on appellant, In the within appeal, a review of the record reveals no reason for disturbing the judgment of the trial court.

The judgment is therefore affirmed.

York, P. J., concurred.