Biles v. Biles

BARNARD, P. J.

This is an appeal from an order refusing to change the custody of two children, aged 2% years old and a boy nearly 5. The custody of these children was awarded to the respondent by an interlocutory decree of divorce entered on April 18, 1949. On April 3, 1950, the appellant applied for a modification of that decree, giving such custody to him. The respondent filed an answering affidavit with the request that the existing order remain unchanged. A final decree of divorce was entered on April 19, 1950, and later that day the respondent was married to one Earl F. Gettle at Santa Ana.

A hearing on the application for change of custody was held on April 21, 1950, at which both of the parties and three other witnesses testified. The evidence disclosed that the children were being well cared for by the respondent in a nearly new three-bedroom home; that the appellant was employed at the Patton State Hospital with board and room furnished; and that he intended, if given the children, to place them in the home of some friends. There was also evidence that on May 9, 1949, the respondent and Gettle had gone through a marriage ceremony at Tijuana, Mexico, and that since that date they had lived together in the home where the children were being kept. The appellant called a witness who testified that she had married Gettle in 1944, and they had not been divorced. On cross-examination, she admitted that when she married Gettle she already had a husband who was still living and from whom she had never been divorced. The appellant testified that he had observed the conditions in respondent’s home, and that they were “just like you find

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them in most homes. ’ ’ The only objection he raised was that the respondent had lived with Gettle without being properly married to him, and that he did not think it was right to “bring up children under conditions like that.” It was brought out that a final decree had been entered, and that the respondent and Gettle had since been remarried. The court suggested that he would like to continue the matter and obtain a report from the probation officer as to whether “the conditions under which the children are presently residing are fit and proper for them insofar as the physical and mental health of the children are concerned, ’ ’ and further remarked that any order permitting the respondent to continue to have custody of the children should be dependent upon her clearing up her marital status, with respect to whether or not Gettle had been free to- marry her. The court asked counsel for the appellant if this was satisfactory to him. He replied that it was and the matter was continued.