Morris v. Morris

SHINN, P. J.

This is an appeal by Geneva L. Shipsey (Morris) from an order denying her application for change of custody of daughters, Susan age 10%, and Sara age 6%, whose custody had been awarded to defendant Thomas G. Morris in 1949 by interlocutory decree of divorce. In the divorce action each had charged the other with cruelty and Thomas had charged Geneva with adultery. Each sought a divorce and custody of the children. At the conclusion of a contested trial in which findings were waived, Thomas was awarded an interlocutory decree and custody of the children;

[708]

Geneva was given the right to visit the children between the hours of 9 a. m. and 5 p. m. at their home, and also the right to have them with her between the hours aforesaid on two days each week and each alternate Saturday. She was ordered not to permit the children to be in the presence of Edward J. Shipsey. By final decree entered September 21, 1950, the custody provisions of the interlocutory decree were continued in effect. Geneva thereafter married Mr. Shipsey. It was his third marriage. Before awarding custody to the father, the court considered an extensive report of an investigation with respect to the conditions under which the children would live in the custody of each of the parties.

On May 22, 1951, Geneva petitioned for modification of the custody provisions. On September 26, 1951, an investigator’s report was filed recommending modification under which Geneva would have custody on alternate weekends from 10 a. m. Saturday to 8 p. m. Sunday, and would also have the children with her during the entire summer vacations and during the Thanksgiving, Christmas and Easter vacations. On September 26, 1951, the parties entered into a stipulation pursuant to which the court made an order of modification which provided that the children would be with their mother on alternate weekends from 10 a. m. Saturday until 8 p. m. Sunday, that each parent would have them for one-half of each summer vacation and upon alternate holidays of Thanksgiving, Christmas and Easter. The provision that the children would not be allowed in the presence of Mr. Shipsey was vacated.

On June 9, 1952, Geneva petitioned for further modification which would allow her to have the daughters with her except when they visited with their father, namely, on alternate weekends and a half of summer vacations, and other vacation periods. A report of an investigator was filed with the same recommendation respecting custody as was contained in the September 26,1951, report. It was received in evidence under a stipulation that if called as a witness the investigator would testify to the facts contained in the report. As the matter stands now the custody provisions are those the parties agreed upon as the basis of the earlier modification.