Newman v. Newman

FOX, J.

This appeal is from an order granting defendant’s application for a modification of the interlocutory decree of divorce and awarding to her custody of the minor children of the parties.

As the sole ground for reversal plaintiff contends there is no evidence (1) of a change of circumstances to justify the modification of the interlocutory decree by which custody of the children was awarded to him or (2) that he is not a fit and proper person to have custody of the children.

An application for modification of an award of custody of minor children is addressed to the sound discretion of the trial court and its determination will not be disturbed on appeal except upon a clear showing of abuse of that discretion. (Rob

esky

v.

Robesky,

74 Cal.App.2d 523, 526 [168 P.2d 976];

Cowen

v.

Cowen,

100 Cal.App.2d 366, 368 [223 P.2d 666] ;

Horsley

v.

Horsley,

77 Cal.App.2d 442, 444 [175 P.2d 580].)

It is the general rule that

to

justify a modification of an order for custody of minor children there must be a change of circumstances after the original decree was entered which renders it essential or expedient for the welfare of the child that there be a change. It is, however, the welfare and best interests of the child with which the court is primarily concerned.

(Foster

v.

Foster, 8

Cal.2d 719, 728 [68 P.2d 719];

Washburn

v.

Washburn,

49 Cal.App.2d 581, 588 [122 P.2d 96];