Fohey v. Fohey

California Court of Appeal Jul 26, 1957 No. Civ. 5482Published

Before: Mussell

AI Brief

AI-generated · verify before citing

Holding. California courts have jurisdiction to determine the custody of a child residing within the state based on the child's best interests, notwithstanding a prior valid custody decree from another state.

Issues

Whether California courts have jurisdiction to determine child custody when a valid custody decree exists from another state.
Whether the trial court abused its discretion in awarding custody to the mother based on the child's best interests.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The paramount concern in awarding custody as between parents is the welfare of the child, who is not the property of his parents.”

“the courts of this state are empowered, notwithstanding any judgment or order of the courts of a sister state, to inquire into and determine in their own behalf what are the best interests”

“The appointment of a guardian for a minor is a matter lying within the sound discretion of the court and the conclusion reached will not be set aside on appeal unless it is shown to have been reached as a result of an abuse of discretion.”

MUSSELL, J.

Shirley Wanda Fohey and James Arnold Fohey were married at Eureka Springs, Arkansas, on September 9, 1951, and were separated June 11, 1954. There were two children the issue of the marriage, Jay Michael, born August 18, 1952, and Janice Lynn, who died on July 12, 1954. In October, 1955, Shirley Fohey filed an action for divorce in Jackson, Missouri, against James Arnold Fohey and by stipulation of the parties the custody of Jay Michael was given to his mother pending trial of the action. The first trial date set for the hearing of this matter was December 26, 1955, and on December 24, 1955, Shirley took the child to San Diego, California, where the child has lived with her continuously since said date.

[821]

The trial of the action in Missouri was continued to March 16, 1956, at which time plaintiff made a substitution of attorneys and the trial was again continued to April 2, 1956. On this last mentioned date a decree of divorce was rendered by the Circuit Court of Jackson County, Missouri, reciting that plaintiff had failed to appear and prosecute her complaint and decreeing that defendant was awarded the care and custody of Jay Michael Fohey. Neither plaintiff nor her attorney were present at this trial and no evidence was there presented in plaintiff’s behalf.

On July 18,1956, Shirley filed in the Superior Court of San Diego County a petition for custody of Jay Michael and on July 27, 1956, an order to show cause was issued re temporary custody of the child. On August 2, 1956, James Arnold Fohey obtained a writ of habeas corpus for the purpose of obtaining custody of the child and both the petition of Shirley and the habeas corpus matter were heard at the same time upon stipulation of the parties. The trial court awarded the custody of the minor child to petitioner Shirley and denied the petition for writ of habeas corpus. James Arnold Fohey appeals from the decree, claiming that the Superior Court of San Diego County erred in awarding the custody of the child to Shirley, contrary to the terms of the Missouri divorce decree. We find no reversible error in the judgment and decree under attack.

Titcomb

Superior Court,

Fohey v. Fohey

AI Brief

MUSSELL, J.

More from California Court of Appeal

Related research

AI Brief