Foster v. Foster

[670]

CURTIS, J.

Petitioner seeks a writ of

supersedeas

to stay the enforcement of a judgment of the Superior Court of Los Angeles County. The facts out of which this proceeding arose are as follows: Iva Gilbertson Foster, petitioner herein, and John Morrell Foster were divorced in March, 1933, by the court of Minnehaha County, South Dakota, and the custody of their adopted son, Whitney Foster, was awarded to each of them with the provision that he should remain with his father nine months of each year from September 10th to June 10th and with his mother for three months from June 10th to September 10th. While in the custody of Mrs. Foster, the child who is now nine years of age, was brought with the consent of the South Dakota court to California, where his mother has established her residence at Beverly Hills. The father has maintained his residence in South Dakota. On August 24, 1934, while the child was lawfully in petitioner’s custody, she instituted proceedings in the Superior Court of Los Angeles County whereby she sought the exclusive custody of the child upon the ground that he was not strong physically and that to permit him to live for nine months of each year in the rigorous climate of South Dakota would undermine his health. Foster resisted the claims and demands of petitioner, and by cross-complaint sought the sole custody of the boy. During the pendency of the action an order granting the temporary custody of the child to the mother was made by the court. On December 12, 1934, the trial judge filed a memorandum opinion. He stated that comity required him to give full faith and credit to the South Dakota decree, subject to the exception that the welfare of the child was the first consideration ; that, however, petitioner had failed to sustain the burden upon her of proving changed conditions or that the health of the child necessitated the overruling of said decree. The court, therefore, ordered that the child remain in the custody of John Morrell Foster for nine months each year and in the custody of the mother three months each year in accordance with said South Dakota decree. On December 14th the trial court granted a ten-day stay of execution on the judgment and ordered that the child remain in the temporary custody of the mother during that period. Foster then moved the trial court for an order granting him custody of the child to become effective December 27, 1934. The motion was argued