Hendrix v. Hendrix

MUSSELL, J.

This is an action for the custody of two minor children of plaintiff and defendant. Plaintiff and the children resided in Riverside County when the action was filed and defendant was personally served with summons in said county on November 27, 1953. She did not appear in the action and plaintiff’s attorneys received no request for continuance or other stipulation and defendant’s default was entered on December 10, 1953. On that day a hearing was had and the court, after hearing the evidence, awarded plaintiff the exclusive care, custody and control of the two children involved. On February 15, 1954, defendant filed an affidavit in support of a motion to set aside her default, stating therein, among other things, that by divorce decree in the State of Washington she had been awarded the custody of said minor children; that she left the children with plaintiff in Riverside in July, 1953, and upon returning to the State of Washington, was served with summons in the instant action; that she came to Riverside on or about November 27, 1953, for the purpose of regaining custody of the children and on that date consulted an attorney in Riverside who advised her that he was quite busy but that he would be able to see her on the following Monday; that while she was in this attorney’s office she was served with a restraining order prohibiting her from taking the children out of the jurisdiction of the Superior Court of

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Riverside County; that upon considering the orders served upon her, she became convinced such orders were in error since she then had the custody and possession of the children; that thereupon she returned to Seattle, Washington, with the two children; that on or about December 15, 1953, she and the children were taken into custody in Seattle, Washington; that the children were there given to plaintiff and he returned to Riverside with them; that she consulted attorneys in Seattle and was advised by them that she would have no standing in the Riverside court because she had violated the said restraining order; that this advice made her apprehensive of returning to Riverside to attempt to contest the hearing in the matter and that for this reason she did not appear at the trial and did not employ an attorney to appear for her. In an amendment to this affidavit defendant stated that the attorneys in Seattle advised her that she need not return to California and that since she was physically present in the State of Washington with the children, her custody of them could not be disturbed.