WHITE, J. I dissent.
I am in accord with the holding of the majority opinion that ‘ ‘ The judgment of reviewing courts should not be substituted for that of the trial judge except upon a clear showing of abuse of discretion,” but in my opinion the instant proceeding presents a ease wherein the court clearly abused the discretion reposed in it in cases of this character involving custody of children, wherein the best interests and welfare of the child are the paramount issues. It is not the feelings and desires of the parents that are determinative, save and except insofar as they may justly be found to affect the best interests and welfare of the minor.
While in cases such as this the trial court is clothed with a wide discretion, such discretion is not plenary and unrestricted but is limited to what may be termed the exercise of a legal discretion, which while broad and inclusive, nevertheless is a legal discretion and must be exercised in consonance with fixed legal principles.
Judicial discretion is neither capricious nor arbitrary. As was said in Bailey v. Taaffe, 29 Cal. 422, 424 “It is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede the ends of substantial justice.” The phrase “judicial discretion” implies the use of discriminating judgment within the bounds of reason and bridled by legal principles, the application of which will tend, in cases such as the instant one, to promote the good and welfare of the child.
[733]In the light of what has just been said, let us proceed to a consideration of the record before us in the instant case. Therein is reflected the fact that respondent herself instituted the original action for divorce on September 18, 1941, in the Superior Court of Los Angeles County. After the cause was at issue, a trial thereof before Hon. Thurmond Clarke, Judge Presiding, resulted in a decree of divorce and the custody of the minor child of the parties being awarded to appellant herein, with the right of respondent to have the child for three summer months each year. In this proceeding the court made findings of fact which included the following:
“That it is true that during the month of May, 1941, plaintiff and cross-defendant told Charles Watt that she never wanted the baby Terry Alexander McKee to know his father.
“That it is true that during the month of May, 1941, plaintiff and cross-defendant advised Charles Watt that she was going to Peru with Max de la Puente and take the baby, Terry Alexander McKee with them and that plaintiff and cross-defendant hoped to get her divorce soon so that she could get out of this Country.
“That it is true that in May, 1941, Max de la Puente moved his clothes into the home of plaintiff and cross-defendant and stayed there constantly and lived there until September, 1941, occupying the room of defendant and cross-complainant.
‘1 That it is true that plaintiff and cross-defendant was seen kissing Max de la Puente on many occasions.
“That it is true that plaintiff and cross-defendant stated to Joan McKee that she loved Max de la Puente and would always love him and that she hoped to marry him and to go to South America and take Terry Alexander McKee (the minor child herein) with them.
“That it is true that since the birth of Terry Alexander McKee, minor child of the parties hereto, Cynthia McKee, daughter of defendant and cross-complainant took care of him in general.
“That it is true that plaintiff and cross-defendant stated to Joan McKee that defendant and cross-complainant would never see Terry Alexander McKee again.
“That it is true that during the month of June, 1941, at the home of plaintiff and cross-defendant and defendant and cross-complainant, located at Azusa, California, the plaintiff and cross-defendant was seen in bed with one Max de la [734]Puente by Julian McKee a minor child of the defendant and cross-complainant; that at said time and place said Julian McKee brought tomato juice with Lea and Perrins sauce to the said plaintiff and cross-defendant and Max de la Puente while they were in bed; that at said time and place said Max de la Puente was a married man.
“That it is true that during the month of June, 1941, at the house of the plaintiff and cross-defendant and defendant and cross-complainant, located at Azusa, California, the plaintiff and cross-defendant was seen in bed with Max de la Puente by Julian McKee, minor child of the defendant and cross-complainant.
“That it is true that during the Spring of 1941, at the house of the plaintiff and cross-defendant and defendant and cross-complainant, located at Azusa, California, the plaintiff and cross-defendant was seen in bed with Max de la Puente by Muir McKee, a minor child of the defendant and cross-complainant.
“That it is true that during the month of June, 1941, at the house of the plaintiff and cross-defendant and defendant and cross-complainant, located at Azusa, California, the plaintiff and cross-defendant was seen in bed by Charles Watt; that at said time and place the minor child of the parties thereto, to wit, Terry Alexander McKee, was in the bed with the plaintiff and cross-defendant and Max de la Puente.”
The court also found that appellant herein “has a well-established proper home in Milwaukee, Wisconsin, and also in Port Austin, Michigan, and that defendant and cross-complainant (appellant) is able properly to care for said minor child at either of these two places, and that the defendant and cross-complainant is better able to provide for the proper raising and education of said minor child than the plaintiff and cross-defendant (respondent herein).”
On August 23, 1943, respondent caused an order .to show cause to issue through which she sought to have that portion of the decree awarding custody of the minor child to appellant herein modified and the custody awarded to her. After a hearing had before Hon. Stanley Mosk, Judge Presiding, respondent’s request for modification of custody was denied. On September 12, 1944, respondent’s motion for modification of a restraining order was denied.
On July 7, 1944, respondent herein filed an action in the [735]Circuit Court of Milwaukee County, Wisconsin, wherein she attacked the decree of divorce herein, denying that the Superior Court of Los Angeles County ever had jurisdiction, notwithstanding the fact that she herself instituted the original divorce proceeding here through the filing of her verified complaint, wherein, as well as in her verified first and second amended complaints, and as a witness at the trial, she insisted under oath that she was a resident of the county of Los Angeles. The question of jurisdiction was an issue and vigorously contested in the divorce trial. Appellant herein by his answer in the original divorce proceeding, denied respondent was a resident of Los Angeles County. At the trial, the court found that she was a resident of California and that appellant herein was a resident of the State of Michigan.
By her pleadings in the Wisconsin action, respondent herein bitterly attacked appellant, and with equal bitterness assailed the character, integrity and honor of the Judge of the Los Angeles County Superior Court who tried the divorce action, her original counsel, and counsel for appellant herein, charging that she was the victim of collusion, fraud and perjury.
In her Wisconsin action, respondent herein, notwithstanding her previous sworn statements in the California proceeding that she was a resident of this state and her testimony at the trial to the same effect, averred in her complaint that she “did not have a domicile or legal residence in the state of California within the meaning of section 128 of the Civil Code” of this state. This she excuses in her complaint filed in the Wisconsin court with the averment that when she took oath before the California court that she was a resident of that state she “assumed that the term ‘a resident’ as used therein referred to the fact that she had been physically present and dwelling in the state of California for one year before the commencement of the action. . . .” In her Wisconsin action, respondent herein alleged on information and belief that “during the trial of said action or prior thereto, the exact date of which plaintiff does not have sufficient knowledge or information to form a belief, the defendant secretly entered into collusion with attorneys B. G. Haumesch and Lee A. Solomon for the purpose of defeating the rights of the plaintiff in said action, and plaintiff also alleges upon information and belief that during said trial or prior thereto, [736]the exact date of which plaintiff does not have sufficient knowledge or information to form a belief, defendant secretly entered into collusion with the trial judge, Hon. Thurmond Clarke, for the purpose of defeating the rights of the plaintiff in said action, and that as a result of the collusion thus practiced by defendant the plaintiff’s rights were defeated and said Hon. Thurmond Clarke decided said action against the plaintiff and entered judgment therein in favor of the defendant in form granting the defendant a divorce and awarding the custody of the minor child of the parties to the defendant for a period of nine (9) months each year”; that because of collusion between her husband and Judge Clarke she was awarded a sum totally inadequate to finance her appeal. In her Wisconsin action, respondent herein further alleged that Judge Clarke’s finding that she was a resident of California was occasioned by the fact that “defendant (appellant herein) subjected Hon. Thurmond Clarke, the trial judge, to his domination and control and after having secured such domination and control the defendant prevailed upon said Hon. Thurmond Clarke as trial judge and caused him to make” the aforesaid finding.
In her Wisconsin action, respondent herein also alleged that appellant’s attorney “caused said action to be assigned for trial before” Judge Clarke who had “secured his appointment as a Judge to the bench of said county through the efforts” of appellant’s counsel, who it is alleged “is a person of much political influence in the County of Los Angeles.” Respondent herein also alleged “that during the trial of said action, Honorable Thurmond Clarke frequently conferred concerning said case” with the son of her husband’s counsel who is also a judge of the Superior Court of Los Angeles County.
The proceedings which gave rise to this appeal were instituted by appellant on May 24, 1945, when he caused to be issued an order to show cause why he should not have complete custody of the minor child. In the order from which this appeal was taken, the court made findings as set forth in the majority opinion. Upon said findings, the court made the order as also set forth in the majority opinion, granting complete custody of the minor child to respondent herein with the right only of “reasonable visitation to the defendant.”
During the hearing which resulted in the last-mentioned [737]order, respondent herein was permitted to file an order to show cause why she should not be granted “full custody of her son, Terry Alexander McKee, subject to the right of reasonable visitation by the defendant. ...” The Wisconsin case was pending at the time of the hearing which occasioned this appeal. And it is apparent from the record that the Wisconsin case was dismissed only after considerable urging on the part of the trial judge herein. Respondent at first evaded the court’s request for a direct answer, and the court permitted a recess so that she might consult with her attorney. After the recess, in answer to the court’s question, “Are you going to continue your litigation in Wisconsin in view of the fact that this is the court that originally had the jurisdiction and still has the jurisdiction over the custody of that child?,” coupled with the question by her own counsel as to whether she would . . . refrain from asking the Wisconsin court in any ways to change or modify any of the decrees of the California courts in regard to that baby, either the custody or the possession or the support or anything else having to do with that child?,” the respondent answered, “Well, I don’t quite- but I think- yes.” Again respondent stated, “I answer that I will comply with any orders that you make concerning the custody of the baby, but I feel that I have my day in court in Wisconsin.” Subsequently, toward the termination of the hearing, the court asked respondent, “Are you planning to dismiss that action (in Wisconsin) irrespective of what decision I make here, Mrs. McKee?,” to which respondent answered, “Your Honor, I believe you will make a decision for me.”
To the interrogatories of the court, “irrespective of what decision I make here,” and “You are going to dismiss your Wisconsin suit?,” respondent finally answered, “I will, Your Honor.”
This attempt at bargaining for a dismissal of the Wisconsin lawsuit, when considered in the light of the sworn testimony aforesaid as to residence, disregard of the jurisdiction of the California courts, assault upon the integrity of a judge thereof, and the evidence relied upon to support the order, in my opinion, justifies a reversal.
The only evidence before the court upon which findings are based is with reference to the accessibility of the appel[738]]ant’s home in Michigan, the inclemency o£ winter weather at Port Austin, Michigan, the claimed absence of appellant from the home from Monday to Friday each week, and the assertion that the minor is under the care of “elderly people,” a man and wife of the age of 50 years and a cousin of appellant’s first wife who is aged 60.
Without going into the conflict in the evidence, suffice it to say that it is noteworthy that there is no testimony of any change in the fitness of appellant to care for his son, while with reference to the health and well-being of the child I quote the statement of the trial judge in that regard as follows:
“That was gone into also, Mr. Scott, no question over the health of the child at the present time; no serious question during any of the time that it has been in his (appellant’s) custody. ’ ’ With reference to educational facilities, while there is testimony that the nearest high school is 16 miles away, the minor child is only 5 years of age and is now attending kindergarten. The evidence is clear and uncontradicted that there is a “very good” elementary school within a mile of the home of appellant in which the child was being cared for, and that there is adequate transportation to take the child to school from his home and to return him thereto.
With reference to respondent’s complaint that the minor child should have children of his own age to play with, the record herein shows without contradiction that some of the minor child’s youthful relatives, 17 in number, visit him and play with him, and for periods of time reside with him; and also, that the boys and girls of his Sunday School class come to his house for parties and he goes to their homes for parties.
With reference to respondent mother’s ability to furnish a home for the child, the record reflects that she has none. Her Milwaukee apartment is not available, first, because she has sublet it, and secondly, it is to be noted that the original custody order and the order modifying custody (from which this appeal was taken) both command that respondent is to keep minor child in California during the periods of time she has custody. The only evidence of any place in California to which respondent can take the minor child is a house owned by a friend of hers “across the Golden Gate Bridge”; which house has four rooms. However,.it already houses two adults and one child, to wit, respondent’s friend and child, and respondent’s stepdaughter. Were respondent to take up resi[739]dence there with the minor child here involved, there would be three adult women and two children living in a four-room house. The record does not show that respondent has any other place in California, or in any other locality, to which she could take the minor child.
In the light of the foregoing, where, I ask, is there any evidence, substantial or otherwise, to support a finding that the best interests and welfare of the minor requires a change of custody such as was ordered herein ? So far as the evidence goes, there is not one iota to indicate that the child did not have the best of care from his father.
All presumptions are in favor of the reasonableness of the original decree entered in this cause, and the burden was cast upon respondent herein to prove that new facts or circumstances had intervened, affecting the welfare of the child, before a modification of the original order in re custody would be justified (Johnson v. Johnson, 72 Cal.App.2d 721, 723 [165 P.2d 552]). In a proceeding to modify an order for custody the court proceeds on new facts considered in connection with those formerly established (Crater v. Crater, 135 Cal. 633, 634 [67 P. 1049]). It is not the whims and caprices of the parties to a divorce action that is the controlling force in directing the custody of minor children, but the good and welfare of the child. Because of the presumptions attached to the original order vesting custody in appellant, he cannot be deprived of such custody unless it be shown that he is so unfit, or that other circumstances have intervened which reasonably indicate that the child’s welfare would be in danger unless an order was made for change of custody, and it must further be shown by clear and convincing evidence that the child’s best interests and welfare will be directly enhanced or promoted by the change (Johnson v. Johnson, supra, p. 909). Were the rule otherwise, it would inevitably lead to the child’s life being constantly unsettled and disturbed by recurring changes of his custody, to say nothing of the foundation it would lay for interminable and vexatious litigation. The ease at bar is utterly barren of testimony showing the presence of any fact or circumstance that was hidden from or undisclosed to the trial judge on the occasion when the original order was made. (Munson v. Munson, 27 Cal.2d 659, 666 [166 P.2d 268].)
What has here been said does no violence to the rule announced in Kelly v. Kelly, 75 Cal.App.2d 408 [171 P.2d 95] ; [740]Dotsch v. Grimes, 75 Cal.App.2d 418 [171 P.2d 506] and other cases cited in the majority opinion, all of which hold that, in the final analysis, while a showing of “changed circumstances” is not an essential prerequisite to the making of a modification order in re custody of a minor child, the 'legal discretion vested in the court must be exercised upon evidence from which it appears that the best interests and welfare of the child would be conserved by any action taken, either denying or granting a change of custody. In other words, while the trial judge is clothed with a wide discretion, that discretion is, as heretofore noted, not unbridled but is limited by the rules of law herein enunciated.
Under the facts present in the instant proceeding and the law applicable thereto, I am persuaded that the trial court abused its discretion in modifying the original order in the absence of any “changed conditions”; appellant’s unfitness, or that the best interests and welfare of the child would be enhanced or promoted.
The order should therefore be reversed.
A petition for a rehearing was denied November 22, 1946. White, J., voted for a rehearing.
Appellant’s petition for a hearing by the Supreme Court was denied December 23, 1946. Carter, J., voted for a hearing.