Robesky v. Robesky

MARKS, J.

This is an appeal from an order modifying an interlocutory and a final decree of divorce by changing the custody of Maxine Edith Robesky from defendant, the father, to plaintiff, the mother.

Plaintiff and defendant were married on July 18, 1936. Maxine was their only child. Plaintiff obtained an interlocutory decree of divorce from defendant on July 21, 1942. The final decree was entered on September 14, 1943. The parties had made a property settlement and the custody of Maxine, then four years of age, was given to her father by agreement of the parties.

At the commencement of the hearing of the order to show cause why the custody of Maxine should not be awarded to plaintiff it was stipulated that both the father and the mother were fit and proper persons to have custody of the child.

By stipulation the order to show cause was heard on affidavits. Many of them were filed and all of them contain much irrelevant, immaterial and redundant matter. When these matters are eliminated the material facts do not appear to be in serious dispute.

At the time of the interlocutory decree of divorce defen

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dant was a teacher in. a high school in Bakersfield. He placed Maxine with Edith Robesky, his mother, who lived in Glendale. Maxine remained with her grandmother until July, 1945.

At the time of the divorce plaintiff was in poor health, weighing only 85 pounds. After a few months she sufficiently regained her health so that she entered the employment of the United States Government at San Bernardino, later being transferred to Los Angeles. She accepted this employment so she could be near and frequently visit Maxine.

Defendant enlisted in the Navy in December, 1942. He was commissioned and served overseas from May, 1943, to December, 1944. He married Margaret Cain in that month. She was a teacher in the same high school where defendant had been employed and the affidavits picture her as a refined and competent lady.

Defendant and Margaret eventually took up their residence at the Naval Advance Base, personnel department, at San Bruno, California, where Maxine lived with them from July, 1945, to August, 1945. In August, 1945, defendant and Margaret permitted plaintiff to take Maxine to her home in Bakersfield under the promise, as maintained by defendant, that Maxine would be returned in September, 1945. Plaintiff failed to return Maxine and defendant obtained possession of her through habeas corpus proceedings. It was stipulated that these proceedings should not be considered as having any bearing on this proceeding to modify the decrees.