Johnson v. Johnson

WILSON, J.

By an interlocutory decree of divorce the minor child of the parties was awarded to appellant. Subsequently, upon respondent’s application, the court made an order awarding custody of the child to her. From the latter order this appeal is taken.

The original complaint seeking a divorce and custody of the child was filed in August, 1943. The parties became reconciled and lived together until early in 1944, when respondent left the home of the parties, this being the third time she. had done so. Appellant filed an amended complaint in March, 1944, in which he prayed for a divorce and the permanent custody and control of the minor child. Respondent filed an appearance and a consent that judgment be entered against her as prayed. In April, 1944, an interlocutory decree of divorce was entered wherein the care, custody, and control of the child was awarded to appellant, with the right of “reasonable visitation” by respondent. Approximately one year later respondent filed an application for a modification of the interlocutory decree, alleging that since said decree was entered conditions and circumstances surrounding the parties and upon which the original order was based had materially

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changed in several particulars and asked that the custody of the child be awarded to her. After a hearing the court made an order that respondent should have the exclusive care, custody and control of the child, subject to the right of appellant to visit her, and authorizing respondent to take the child with her to Las Vegas, Nevada. The modifying order was made by a judge other than the one who rendered the interlocutory decree.

There is no evidence whatsoever sustaining any of the allegations that circumstances and conditions had changed except that respondent had remarried and that she and her new husband (if the marriage is not void) had a home in which the child could be maintained. The evidence discloses that when respondent deserted appellant on the last occasion she went to a hotel to reside although, as she testified, she could have gone to her mother’s home. Shortly thereafter she went to Texas, where she met an army officer and from there she went to Nevada for the purpose of obtaining a divorce in order to marry him. Upon her arrival in Nevada she became acquainted with a railroad employee and a courtship almost immediately began. Notwithstanding the fact that by her appearance in her husband’s divorce action in Los Angeles she had submitted herself to the jurisdiction of the California courts, she commenced an action in Nevada for a divorce. An interlocutory decree was granted in the instant ease to appellant on April 24, 1944. The Nevada decree in favor of respondent was granted on May 1, 1944, and on the same day she and her present husband were married.