Davis v. Davis

California Supreme Court Oct 16, 1953 No. L. A. 22376Published

Before: Shenk, Gibson, Edmonds, Carter, Traynor, Spence, Schauer

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Holding. The court held that a trial court may modify a child custody decree without making formal written findings of fact, provided there is substantial evidence of a change of circumstances justifying the modification in the child's best interests.

Issues

Whether written findings of fact are required to sustain an order modifying a child custody decree.
Whether the trial court abused its discretion in modifying the custody order based on the evidence presented.

Disposition. affirmed

Quotations verified verbatim against the opinion

“it is the general rule that written findings of fact are not essential to sustain an order modifying a decree of divorce by changing the order relative to the custody of minor children.”

“the general rule that to warrant the modification of a custodial order there must be substantial evidence of a change of circumstances after the entry of the original decree.”

“The record is sufficient to support the conclusion that the defendant’s subsequent marital status, the circumstances of her later home life, and her recent apparent lack of devotion to the child, were such as to render it advisable”

SHENK, J.

In this supplementary proceeding in a divorce action the plaintiff, Ralph C. Davis, applied for a modification of the provision of the divorce decree which awarded to the mother, Eleanor May Davis, the custody of their 5-year-old daughter, Patricia Diana Davis. Pursuant to the application the trial court awarded the custody of the daughter to the father. The mother appeals from the order.

The decree of divorce was granted to the defendant on her cross-complaint. The interlocutory decree was entered on April 3, 1947, and the final decree on April 7, 1948. As above noted the custody of the daughter was awarded to the mother. Following a hearing on March 14, 1950, on the plaintiff’s application, the court modified the decree with respect to visitation rights but continued the matter for further hearing to June 20, 1950, when evidence was taken and the decree was again modified with respect to those rights. The matter was then continued to December 19, 1950, when it was postponed indefinitely. On December 28, 1951, on application of the plaintiff supported by affidavit, the court issued an order requiring the defendant to show cause why she should not be held in contempt for violating court orders and why the custody provisions of the divorce decree should not be modified by awarding custody of the daughter to the plaintiff.

The application was made on the ground that the defendant had violated the visitation rights of the plaintiff and that

[565]

under conditions obtaining since the original order of custody was made it was for the best interests of the child to transfer custody to the plaintiff. The appeal is presented on a settled statement. There was no adjudication of contempt. The custodial order was changed without making any findings or recitation of facts upon which it was based.

As between parents “it is the general rule that written findings of fact are not essential to sustain an order modifying a decree of divorce by changing the order relative to the custody of minor children.”

(Smith

Smith,

85 Cal.App.2d 428, 433 [193 P.2d 56] ; see, also,

Davis v. Davis

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SHENK, J.

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