Fauble v. Fauble

FOURT, J.

This is an appeal from an order which modified a judgment of divorce with reference to the custody, support and maintenance of two minor children and an order dismissing a contempt proceeding.

Myrl Marlene Fauble, sometimes hereinafter referred to as the “wife” or “mother,” married Alton Lewis Fauble, sometimes hereinafter referred to as the “husband” or “father,” on March 4, 1949. They removed to Oregon shortly thereafter where they resided until about 1953 when they returned to California. Two children were born as the issue of the marriage, namely Richard on February 2, 1950, and Brenda on December 17, 1953. In June of 1954 the parties separated. In an uncontested action, an interlocutory decree of divorce was granted the wife on July 22, 1955. The custody of the minor children was awarded to the mother. The father was ordered to pay to the mother for the support and maintenance of the children the sum of $30 per week and in addition thereto to provide medical and dental care. The father was to have the right of reasonable visitation with the children. The final judgment of divorce was granted on Sep

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tember 26, 1956, which in effect adopted the provisions of the interlocutory judgment with reference to custody and support and maintenance matters.

On November 1, 1961, the husband filed an application for a modification of the judgment requesting among other things that the custody of the children be awarded to him and that he be relieved of any future child support payments. The husband set forth in an affidavit for the order to show cause that the children were then 8 and 11 years of age respectively, that the mother had remarried and by such remarriage had four children and that she was separated from the father of the four children and living with the six children in a facility which was detrimental to Richard and Brenda. Furthermore that he, Alton Fauble, had remarried and had two children by such remarriage and was living on a farm in Oregon and could care for Richard and Brenda in a manner which would be to their best advantage and interest. He further set forth that he was technically in default under the support and maintenance order, however that through the office of the District Attorney of San Bernardino County the amount of the support had been reduced to $10 per week per child and “later through RESL proceedings to $50 per month.” Also it was asserted that the mother had refused to keep the father advised as to the whereabouts of the children and herself and that mailed support payments had been returned to him.