Bartold v. Bartold

RICHARDS, J. pro tem.

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Appeal by defendant-husband from an order denying his application to modify the custodial provisions of a judgment of divorce and to award him the custody of the minor children of the parties.

On October 16, 1953, plaintiff-wife was granted an interlocutory judgment of divorce which awarded to her the custody of the two minor children and granted to the appellant the right of reasonable visitation. The judgment does not prohibit the plaintiff from removing the children from the county of Los Angeles or the State of California. The appellant was ordered to pay $170 a month for their support. A final judgment of divorce was entered January 5, 1955, incorporating the provisions of the interlocutory judgment as to custody, visitation and child support. On June 6, 1956, the judgment was modified by reducing the support provision for both children to $25 a week and on November 7, 1956, the support provision was further reduced to $17 a week. On November 23, 1956, an order to show cause was issued directed to the plaintiff-wife why the amount of the support payments should not be reduced to $1.00 a month for each child and why the custody of the children should not be awarded to the appellant. The only change of conditions and circumstances alleged by the appellant in his affidavit in support of his motion to award custody of the children to him was that the support payment sent by him on November 1, 1956, to the last known address of the children in Berkeley, California, was returned to him by the post office, and that the envelope bore a notation of a change of address to Colorado Springs, Colorado, and was returned from there as “Unknown.” He further alleged that he was unable to locate the plaintiff or his children in California or anywhere else after making inquiries as to their whereabouts. A hearing was held before a court commissioner who found that neither the appellant nor plaintiff’s attorney could locate her or the minor children and recommended that the appellant should be relieved from the child support obligation until further order of the court, which recommendation was

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thereafter approved and ordered by the court. No order was made on appellant’s motion for change of custody. However, an order having been made relieving him from child support payments and going no further, it was equivalent to refusal to order a change of custody and appellant was justified in treating the silence of the order as a denial of his motion for change of custody.