McKee v. McKee ( 1946 )

DORAN, J.

On September 18, 1941, the respondent wife filed an action for divorce, and thereafter an answer and cross-complaint was duly filed by the appellant husband. The trial of the issues involved therein took place between October 28, 1942, and November 20, 1942, before Judge Thurmond Clarke, and resulted in an interlocutory judgment of divorce awarding the custody of the minor child, Terry Alexander McKee, then aged about two years and four months, to the appellant father, with the provision that the child should “spend three months in the summer time with the plaintiff” mother, during which period the child was not to be taken out of the State of California without consent of the court. The appellant was ordered to pay the respondent $300 per month pursuant to a property settlement agreement, and an additional sum of $100 per month during the time the child was with the respondent. The trial court found that the father, to whom custody was granted, had ‘ ‘ a well established, proper home in Milwaukee and also in Port Austin, Michigan,” and that the father “is better able to provide for the proper raising and education of said minor child than the plaintiff.” The court also found that the mother, respondent, had been guilty of indiscreet conduct with another man. From this judgment the mother instituted an appeal on March 2, 1943, but filed an abandonment of such appeal on May 21, 1943. On August 23, 1943, the mother sought a modification of the custody order, which modification was denied September 29, 1943, by Judge Stanley Mosk. Again, on September 12, 1944, Judge Mosk, at another hearing, granted the father control of the child on designated Saturdays during September when the mother otherwise had custody, and reaffirmed the original order granting custody to the father during nine months of the year.

The record further discloses that on July 7, 1944, Evelyn McKee, the mother, filed in the Circuit Court of Milwaukee County, Wisconsin, a lengthy complaint seeking exclusive custody of the child; alleging that the Superior Court of Los Angeles County possessed no jurisdiction to enter the divorce judgment of November 20, 1942, for the reason that Mrs. McKee who had instituted such action and had averred a California residence, nevertheless had then possessed no such legal residence. The Wisconsin complaint further assailed the integrity of the California judge who granted the original divorce judgment, of plaintiff’s original attorneys, and of the defendant’s attorney, charging collusion among them resulting in the judgment fixing custody of the child.

On May 24, 1945, the father, appellant herein, instituted in the Superior Court of Los Angeles County, an order to show cause, seeking complete custody of the child Terry, and during the hearing thereof, the mother was permitted to have issued a similar order to show cause also requesting the complete custody. The minute order of this hearing states that Judge Ruben Schmidt ordered “the custody of the child to be with the plaintiff (respondent, mother,) with the right of reasonable visitation to the defendant. ’ ’ The formal order, set forth in a supplement to the appellant’s brief, recites that the child “is now five (5) years of age and . . . has been kept (at Port Austin, Michigan) in a place not accessible, snowbound in winter, and subject to severe weather conditions”; that the defendant is frequently absent from home and that most of the time Terry had been under the care of aged employees; that the mother “has been deprived of the opportunity of visiting and caring for her child,” and that the mother “is a fit and proper person to have the care, custody and control of said minor child.” The present appeal is from this order changing custody from the father to the mother.

It is the appellant’s contention that “there is absolutely no evidence of any change of circumstance and it was reversible error for the court to modify the original custodial order”; further, that “The uncontradicted evidence proves conclusively that the original custodial order protects and serves the welfare and best interests of the minor child, ’ ’ and that there was “a clear case of abuse of judicial discretion” in modifying the original order. On behalf of respondent there is cited the case of Munson v. Munson, 27 A.C. 676, now reported in 27 Cal.2d 659 [166 P.2d 268] wherein the court said, “It is settled that ‘An application for a modification of an award of custody is addressed to the sound legal discretion of the trial court, and its discretion will not be disturbed on appeal unless the record presents a clear case of an abuse of that discretion [Citations.] ’ (Foster v. Foster, (1937), 8 Cal.2d 719, 730 [68 P.2d 719].)” This decision further reiterates the fundamental rule that the question of custody “is to be determined solely from the standpoint of the child.”

In support of appellant’s contention that a clear abuse of discretion has occurred, there were cited in oral argument the cases of Kelly v. Kelly, 75 Cal.App.2d 408 [171 P.2d 95], and Dotsch v. Grimes, 75 Cal.App.2d 418 [171 P.2d 506]. The law, as announced in these and other cases, coupled with the factual situation as presented in the record, makes it clearly apparent that no reversal should occur in the instant case, and that the custody should be left with the mother, as determined in the order herein appealed from. In the case of Kelly v. Kelly, just referred to, the court approved the statement in Peterson v. Peterson, 64 Cal.App.2d 631, 633 [149 P.2d 206] that the rule of “changed circumstances” governing modification of custody orders “might well be termed a creature of judicial expediency. . . . ‘However, that is not to say that the courts have no jurisdiction to modify previous orders in the absence of such a showing nor do the decisions wherein the (changed circumstances) rule is enunciated “deny the power of the court to make such modification of its orders relative to the custody of children. ’ ’ (Bogardus v. Bogardus, 102 Cal.App. 503, 506 [283 P. 127].)’.” Particularly applicable to the present situation is the following language found at page 415 of the Kelly case: “We are impressed that the ‘changed circumstances’ rule, which is not statutory, is resorted to in those eases where the court has originally determined that the child should be in the custody of one of the parents because of the unfitness of the other to have such custody, . . . and not to cases such as the instant one where the court found both parents to be fit, awarded them both custody. ...” In the present case, as commented on in respondent’s brief, Judge Thurmond Clarke, who made the original custody order, must have decided that any “dereliction allegedly proven against respondent in the original divorce action,” did not militate against granting custody to the mother during three months of the year.

There is a similar holding in Dotsch v. Grimes, 75 Cal.App.2d 418 [171 P.2d 506] decided the same day as the Kelly case (July 18, 1946), where the court said: “If, as it has been repeatedly held, the welfare and best interest of the child are the paramount concern of the court, then what governs is not the rule of ‘ changed circumstances, ’ but what at the time of the hearing is, in the sound discretion of the court, for the child’s welfare.” In the Dotsch ease it was held that the trial judge did not abuse discretion in modifying a custody order so as to provide that the father should have custody for six weeks instead of three months. So in the present case it cannot be said that the final order granting custody to the mother for 12 months instead of three months as originally ordered, amounts to an abuse of discretion justifying reversal, particularly in view of the age of the child and the other circumstances which were before the court.

At the trial of the within action, both parties appeared as witnesses and were examined and cross-examined at length. It has been noted often in many decisions that the trial judge, having heard the evidence and observed the witnesses, is best qualified to pass upon and determine the issues there presented. And this is especially true where the custody of minor children is involved. It is well settled that the judgment of the reviewing court should not he substituted for that of the trial judge. Only upon a clear showing of abuse of discretion will such judgment be disturbed on appeal. There is no such showing in the instant case. Nor does the- fact that the mother had instituted in another state, an action assailing the original California divorce proceeding, and again seeking custody of the child, in any manner affect the situation, however ill advised such action may have been.

The order appealed from, granting complete custody to the mother, respondent herein, is therefore affirmed.

York, P. J., concurred.