Arthur v. Arthur

BARNARD, P. J.

This appeal involves provisions for the custody of and support for the minor children of the parties to the action. These parties went through a marriage ceremony in June, 1945, and lived together until January, 1955, during which period three children were born to them. The plaintiff wife brought this action for divorce, for custody and support of the minor children, and for attorney’s fees and costs. The defendant husband answered and filed a cross-complaint for an annulment, alleging that the marriage of the parties was bigamous. At the trial in February, 1956, the plaintiff’s motion to strike from her complaint the allegation that the parties were and are husband and wife was granted. It was agreed and documentary evidence was received showing those facts, that the plaintiff was in fact married to one Schaefer at the time of her purported marriage to the defendant, and that the marriage to Schaefer was not dissolved until sometime in 1947. It was then stipulated that the trial was to proceed on the cross-complaint and the answer thereto, on the question of the parties’ knowledge of the bigamy, and on the matters of custody and support of the minor children.

[89]

The court found that on June 27, 1945, these parties participated in a marriage ceremony; that subsequent thereto these three children were born; that at the time this ceremony was performed the plaintiff and cross-defendant was the legal wife of one Schaefer; that both parties to this action then knew that fact; that after the plaintiff was divorced from said Schaefer she requested the defendant to enter into a valid marriage with her; that he continued to live with her and have children by her, but refused to enter into such a valid marriage; that during the cohabitation of these parties they have become possessed of certain household furnishings and equipment which “are needed for the care and maintenance of the minor children”; that the plaintiff is a fit and proper person to have the care, custody and control of the minor children; that it is necessary for the welfare and best interest of said children that the defendant be denied the right of visitation with said children at this time; that the defendant is an enlisted man in the United States Navy with a rating as first class petty officer; that it is proper that he make a Navy allotment for the support of the three children in the sum of $176 per month; that the plaintiff is without funds or credits to pay the expenses of this hearing; and that by reason of the facts and circumstances the expense of this hearing should properly be assessed to the defendant. In accordance with these findings, and with the conclusions of law, a judgment was entered declaring that the marriage between these parties was null and void from the beginning, and further ordering that the plaintiff have the exclusive care, custody and control of these children; that the defendant be restrained “from visiting with said minor children until further order of this court made upon recommendation of the Probation office of the county of San Diego”; that the defendant shall pay to the plaintiff by United States Navy allotment or otherwise for the care, maintenance and support of the children the sum of $176 per month; that the defendant pay to plaintiff’s attorney for attorney’s fees and costs incident to this hearing the sum of $200; and that the plaintiff “shall have exclusive use and possession” of the household furnishings and equipment acquired by the parties. The defendant has appealed from all of said judgment except that portion which decrees that the marriage between these parties was and is null and void.