Kemmer v. Kemmer

FOX, J.

This is essentially a change of custody case.

The parties, formerly husband and wife, lived in Erie, Pennsylvania, with their two children. Early in 1953 the husband was granted an uncontested divorce. No order was made relative to the custody of the children. They were brought to California in May of that year by the father’s mother.

In the summer of 1954, the mother of the children moved to Burbank, California, where she secured employment. The father thereupon filed this suit to determine the custody of the children. At a hearing in September, 1954, the court awarded custody to the mother of the children, requiring the father to make certain payments for their support, and restrained each party from removing the children from the state. In the following November, the mother lost her job, turned the children over to their father, and returned to her home in Erie, Pennsylvania. In July, 1955, she married a Mr. Inman, whom the plaintiff charged with breaking up the Kemmer home. The Inmans live in Piketon, Ohio, where Mr. Inman is employed as an electrician by the Goodyear Atomic Corporation at a salary of $95 a week. The mother thereupon returned to California and by motion in this suit sought to have vacated the former restraining order prohibiting either parent from removing the children from the state of California, and also sought permission to take the children to Ohio to reside with her and Mr. Inman. Mr. Kemmer countered with a motion to modify the custody order and to award the custody of the children to him. The court denied the motion of the mother and granted that of the father. It is from the ensuing orders that the mother appeals.

At the time of the hearing the boys were, respectively, 8 years, and 6 years and 8 months, of age. The court found that since the arrival of the children in California, in May,

[235]

1953, they had been in the physical custody of their father all the time except for a period of four months in the summer and fall of 1954, and that he had properly cared for, maintained, and supported them for approximately this two-year period; that they attended the public schools, and, under the father’s supervision, the local church. Mr. Kemmer has a job with a railroad company. He works the graveyard shift. This enables him to have time at home with the boys during the day when they are not in school, and in the evenings. Mr. Kemmer’s mother, a woman 57 years of age, takes care of the home and looks after the children. Mr. Kemmer lives in a house which has a separate room for the boys. He had lived in this house for a year and a half. At the time of the hearing the boys were preparing to attend the same school they had attended the previous year.