Ford v. Superior Court

California Court of Appeal Jun 9, 1959 No. Civ. 23810Published

Before: Nourse

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Holding. A plaintiff in a child custody action acts as a guardian ad litem for the child and cannot unilaterally dismiss the action under Code of Civil Procedure section 581 because the court's inherent power to protect the child's welfare requires judicial consent for dismissal.

Issues

Whether a plaintiff in a child custody action has an absolute right to dismiss the action under Code of Civil Procedure section 581, subdivision 1.
Whether the trial court has jurisdiction to vacate a dismissal of a child custody action entered by the clerk at the plaintiff's request.

Disposition. Peremptory writ denied.

Quotations verified verbatim against the opinion

“The controlling factor in the action is not the rights of the parties seeking custody but is the welfare of the child.”

“When the complaint was filed, the child for whose benefit the action was commenced was brought under the protection of the court and was in effect a party to the action”

“petitioner as the plaintiff in the action representing the child was in the same position as a guardian ad litem, and was without power to dismiss the action without the consent of the court.”

NOURSE, J. pro tem.

Petitioner seeks a writ of prohibition to enjoin the respondent court from further proceedings in an action commenced by him against Joy A. Ford, his former wife, wherein he sought to have it adjudged that he was, and Joy was not, a fit and proper person to have custody of their minor child Jerre and prayed that he be awarded exclusive care, custody and control of said child.

The relevant facts are: Plaintiff and Joy married in December of 1947. There was one issue of the marriage, a child Jerre, who was born on October 22, 1955. In August 1958,' Joy obtained a final decree of divorce from petitioner here in the State of Nevada. By said decree she was awarded custody, care and control of Jerre. In December of 1958, in the State of South Carolina, a written agreement was signed by the parties which by its terms purported to place the custody of Jerre in petitioner, Joy waiving and relinquishing all right to the custody of the child as given her under the Nevada decree. After this agreement was signed petitioner brought the child to Los Angeles and on January 5, 1959, commenced the subject action. At the time of the commencement of that action petitioner, the child and Joy were domiciled in Los Angeles.

[230]

On January 29, 1959, Joy filed a demurrer to the complaint and a motion to strike from the complaint and a motion for an order requiring petitioner to pay attorney’s fees and costs to Joy in order that she might defend the action. On that day petitioner left the state taking Jerre with him and since said time he and the child have resided in Australia.

On February 2, a request for the entry of a dismissal of the action was filed. This request was dated January 29, 1959, and signed by petitioner and his counsel. Thereafter counsel for Joy filed a memorandum of costs and disbursements included in which was a demand for attorney’s fees pursuant to section 137.3 of the Civil Code. Petitioner moved to tax costs and upon this motion being heard costs were taxed in the sum of $16.50 “without prejudice to defendant seeking to set aside the dismissal.” Joy then moved the court to vacate the dismissal which had been entered by the clerk at the request of petitioner. This motion was granted and Joy filed an answer to the complaint and a cross-complaint by which she seeks to establish the Nevada decree as a domestic judgment and seeks custody of Jerre.

Ford v. Superior Court

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