Ellsworth v. Ellsworth

EDMONDS, J.

Jack Howard Ellsworth has moved to dismiss the appeal taken by his former wife from an order vacating one which adopted the findings and recommendation of a commissioner of the court. The question presented for decision concerns the legal effect of the redetermination.

In a proceeding initiated by an order to show cause, Evelyn Ellsworth sought to modify the provisions of interlocutory and final decrees of divorce which award to Jack the custody of their minor son. Pursuant to section 259a of the Code of Civil Procedure, the matter was referred to a

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court commissioner who, after a hearing, made findings of fact upon which he based a recommendation that custody be given to Evelyn. The trial judge endorsed the report “So ordered” and, by a minute order, directed a modification of the decrees in accordance with the commissioner’s recommendation.

Within the time allowed by the same section, Jack filed exceptions to the findings of fact and the subsequent order of the court, together with a notice of motion to have them set aside. After a hearing, the trial judge made the following order: “Plaintiff’s exceptions to the findings and report of the commissioner are sustained and his motion to set aside the order based upon said findings and report is granted leaving the order for custody in effect as set forth in the interlocutory decree and as incorporated by reference in the final decree. Rehearing is set for April 10—1953 at 9 :45 A.M.”

The ruling of the trial judge on the exceptions and motion was made under the authority of section 259a of the Code of Civil Procedure, which provides in part: “Subject to the supervision of the court, every court commissioner of a county or city and county having a population of nine hundred thousand inhabitants or more shall . . . have power :

“2. To take proof and make and report his findings thereon as to any matter of fact upon which information is required by the court; but any party to any contested proceeding may except to such report and the subsequent order of the court made thereon within five days after written notice of the court’s action, a copy of said exceptions to be filed and served upon opposing party or his counsel within said five days; and may argue his exceptions before the court on giving notice of motion for that purpose within ten days from entry thereof. After a hearing before the court on such exceptions, the court may sustain, or set -aside, or modify its order theretofore made. ...”