Larson v. Larson

WHITE, J.

Defendant appeals from a decree of the superior court changing the name of his minor daughter and from an order denying his motion to vacate said decree.

On April 22,1943, the petitioner, Marion Armstrong, mother of the aforesaid minor, obtained a final decree of divorce from the defendant, Austin Gilford Larson. Under the provisions of the interlocutory decree of divorce, respondent herein, Marion Armstrong, was awarded the care and custody of the above-named minor child with the right of “reasonable visitation” to appellant. On April 13,1944, respondent was married to Weir P. Armstrong. On August 15, 1945, appellant also remarried.

On April 10, 1945, respondent mother of said minor child filed on behalf of herself and her child, Gaylynn Evon Larson, in the Superior Court of Los Angeles County, a petition to change the name of said minor to Gaylynn Evon Armstrong. In her petition for a change of the minor’s name, respondent mother assigned as reasons therefor, her divorce from appellant, the award to her of the custody of said minor, her remarriage to Weir P. Armstrong, and that said minor “is now a member of the household of her mother, the said Marion Armstrong, and her stepfather, the said Weir P. Armstrong, and another child is about to be born to her mother and her stepfather; and it will be to the best interests of said child, Gaylynn Evon Larson, that she have and bear the surname of her mother.”

Upon the filing of the aforesaid petition for change of name, an order to show cause was issued, which was published and an affidavit of publication filed. On May 15, 1945, the matter came on for hearing, at which time no person appeared to object, evidence was presented, and the court accordingly rendered its decree changing the name of said minor as prayed.

On May 13, 1946, appellant filed a notice of motion to set aside the aforesaid decree of May 15, 1945, together with an affidavit in support thereof. On May 15, 1946, respondent mother filed her affidavit in opposition to such motion. On the same date, appellant’s motion came on for hearing, and on May 27, 1946, the court made its order denying the same. This appeal was then taken by appellant.

[260]

By Ms affidavit filed in support of Ms motion to vacate the decree changing the name of his minor daughter, appellant set forth that at the time of filing the petition for change of name he was a member of the Army Air Force of the United States. “That during the time of the publication of the petition I was a prisoner of war in a German prison camp and subsequently I was released from the prison camp wherein I had been a prisoner of war for some sixteen months and I did not return to the United States until sometime in June, 1945, and did not return to the state of California until the 27th day of June, 1945 . . .; that had I known . . . that the above proceedings were pending, we would have appeared in court with our attorney and would have objected to the same and would have shown good cause against such change of name.” WMle admitting that Ms former wife had told Mm that his daughter’s name had been legally changed, appellant asserts that on May 11, 1946, as a result of an investigation made by his attorney, he learned for the first time “that the proceedings above had actually been filed and that a judgment and order changing the name of my daughter ... is a matter of record, as I hesitated to believe that Marion Larson Armstrong would institute such an action . . . without first informing me so that I' could be properly represented at such a hearing. ” As a reason for not sooner making his motion to vacate the order changing his daughter’s name, appellant asserts that he was “unacquainted with the procedure of changing names as a matter of record, and did not know that the changing of the name of my daughter could be made or attempted without personally notifying me by summons or otherwise.” Appellant then sets forth in Ms affidavit the objections he had to such change of name.