Phillips v. Phillips

California Court of Appeal Dec 9, 1941 No. Civ. 6420Published

Before: Tuttle

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Holding. The court held that the trial court did not abuse its discretion in modifying a custody decree to grant the father custody, finding that the mother was not deprived of due process and that the evidence supported the court's determination that the parents were not equally situated.

Issues

Whether the trial court denied the appellant due process by failing to continue the hearing to allow for additional witnesses.
Whether the trial court erred in its application of custody statutes regarding children of tender years.
Whether the evidence was sufficient to support the modification of the custody order.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The qualifying clause, “but other things being equal,’’ still leaves a large measure of discretion with the trial court.”

“If the court finds that other things are not equal, as it evidently did here, and there is any substantial evidence to support such a finding, our inquiry is at an end.”

TUTTLE, J.

Appellant appeals from an order giving her former husband, respondent, the custody of the six year old daughter of the parties.

A final decree of divorce granted the custody of said' minor to appellant. Thereafter, charging that appellant was not a fit and proper person to have the custody of the child, respondent procured an order to show cause why said decree should not be modified to the extent that he be granted her custody. The matter was set for hearing on June 19, 1939, when both sides appeared, ready for the trial of the issues involved. At that time respondent was in arrears in the payment of a monthly award of $30 for the support of the minor. The amount had been due nine days.

During the cross-examination of respondent it developed that, as stated above, he was in default in one payment of the allowance. Thereupon, appellant moved the court to dismiss or continue the hearing until “he” (respondent) “has purged himself of contempt.” Later, during the hearing, the court stated:

“You may call any other witnesses. Then we will continue the matter for one week and give him an opportunity to purge himself of contempt of court before I pass upon the motion. ’ ’

The hearing continued. Toward the end thereof, the following proceedings took place:

‘ ‘ THE COURT: The motion submitted to increase the allowance for the support of the child will be denied. The interlocutory decree will be modified at this time giving the custody of the child to the father until the further order of the court; if circumstances change down there, and the home

[406]

provided by the father is not satisfactory, you may make a motion.

“MR. SNYDER: If the court please, I want it definitely understood I by no means waive my right under the original motion, with this testimony at this time; I also at this time, if the court please—withdraw that—I don’t want the court to understand my proceeding at the court’s request I waived my right on my motion to dismiss the particular motion on the grounds that this man was in contempt; I made it in time and I want it to be understood.

Phillips v. Phillips

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TUTTLE, J.

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