Merrill v. Merrill

PETERS, P. J.

Plaintiff, Lucy M. Merrill, obtained an interlocutory decree of divorce from defendant on February 25, 1954. There was one child of the marriage, Bruce, then aged 7. The decree granted the parents joint custody of this child and divided his physical custody between them. Thus, defendant was awarded physical custody on alternate week ends, and on certain designated holidays. Defendant was also awarded physical custody during six weeks of the summer vacation. The plaintiff was awarded physical custody for all of the periods not specifically awarded to defendant. The final decree, embodying the terms of the interlocutory, was entered March 1, 1955.

In June of 1956 plaintiff noticed a motion to modify the decree so as to greatly limit the periods of custody that had been awarded to defendant, and in July, 1956, noticed a supplementary motion to further modify the decree by awarding the plaintiff full custody of the child and allowing the defendant certain limited visitation rights. Affidavits accompanied both notices, and, after some difficulties, defendant’s deposition was taken. In November, 1956, after a two-day

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hearing, the trial court modified the decree to provide that defendant was to see to it that during the periods the child was in his custody the child was to be sent to Sunday School. The modification also expressly provided that the plaintiff had the right to select the grammar school the child was to attend, and provided that both parents should permit the child to take readily movable toys from one residence to the other. The court also inserted a provision that each of the parties should keep the other informed of the whereabouts of the child during the long summer vacation, and that during the vacation periods each parent should have the reasonable right of visitation while the child was with the other parent. The six-week period awarded to defendant during summer vacations was divided into two three-week periods. In all other respects, the motions to modify were denied. The plaintiff appeals, contending that it was an abuse of discretion not to have granted her a more extensive modification.

The record shows that defendant is a practicing psychiatrist. He has been married three times, there being two children resulting from the first marriage, and Bruce was the sole issue of the second marriage to plaintiff. After the date the parties were divorced, both parents resided in Marin County. Defendant first rented a house in Sausalito. The household there consisted of a cook, defendant’s then secretary whom he subsequently married, and occasionally the defendant’s two children of the first marriage, and the secretary’s mother. Since August of 1954 defendant has lived in Belvedere, where the cook and his secretary, who is now his wife, went to live with him. At both residences the defendant, his secretary and various house guests indulged, on occasion, in considerable drinking, sometimes in the presence of Bruce. But there was no evidence that defendant was ever intoxicated in the presence of the child; in fact, the evidence is to the contrary.