Gantner v. Superior Court

TRAYNOR, J.

This action involves problems similar to those discussed in

Lerner

v.

Superior Court, ante,

p. 676 [242 P.2d 321].

In 1941 Vallejo Gantner, petitioner in this application for a writ of prohibition, and Neilma Gantner, real party in interest, vrere married in Australia. Thereafter they resided in this state where their two children were born. Following marital difficulties Neilma filed suit for divorce in San Francisco, and Vallejo cross-complained for divorce. Before the action came to trial, the court entered an order allowing Neilma to have custody of the children pending trial but restraining her from taking the children more than 50 miles from San Francisco without the written consent of Vallejo or an order of the court. On August 9, 1949, the trial court entered an interlocutory decree granting Neilma a divorce and granting joint legal custody to the parents. Neilma was granted physical custody and Vallejo rights of visitation. The decree vacated the 50-mile order but provided that neither parent should remove the children from California without approval of the court. The trial court denied Neilma’s request that she be allowed to remove the children to Australia to reside there permanently with Neilma and her family, stating in a memorandum opinion: “The Court feels that it would be for the best interests and welfare of the children for them to be in their mother’s physical custody, but to remain in California, to be raised in our American way of life. The Australian family of plaintiff [Neilma] can well afford to make numerous visits to California so as to give the children the benefit of their comfort and society if they so desire.” The final decree, entered August 15, 1950, contained the same provisions as the interlocutory decree. No appeal was taken from either decree.

On March 1, 1951, Neilma served notice of a motion seeking an order from the trial court permitting her to take the children to Australia for a vacation trip during the children’s summer recess from school. Court permission was necessary because the final divorce decree restrained both parents from taking the children from the state. Vallejo filed affidavits vigorously opposing this motion on the ground

[690]