Wiedmann v. Superior Court

NOURSE, J. pro tem.

*

—In the above-entitled matter we issued three writs: an alternative writ of mandate as to an order granting real party in interest, Ernest J. Wiedmann, temporary custody of the three minor children, a writ of habeas corpus as to the three minor children and an alternative writ of prohibition relative to the proceedings pending in the respondent court for a determination of the right of custody to said minors. These matters have been consolidated for hearing and will be determined herein.

[550]

All of the foregoing proceedings arise out of the following facts: In 1953 petitioner and real party in interest were residents of the State of New Mexico. In April of that year petitioner secured a final decree of absolute divorce from real party in interest. By this decree she was awarded the custody of the three minor children of the parties, Arietta then 7 years of age, Sebastian then 4 years of age and Jerome then 1 year of age. The decree provided that petitioner should “have the exclusive care and control of said children, except that defendant shall have the right ... to have them

visit him,

... at reasonable times and for reasonable periods of time only.” (Emphasis ours.) At the time of the entry of the decree, real party in interest had established residence in California.

The decree did not place any limitation upon where petitioner might establish her residence and that of the children, and in 1955 petitioner established her residence and domicile in Phoenix, Arizona, and moved with the children to that place. Between the date of the entry of the decree and the fall of 1956, the children visited real party in interest at his home in California. In 1958 petitioner instituted an action in the Superior Court of Santa Barbara County to require real party in interest to support the minor children and obtained an order requiring him so to do. In the summer of 1959 arrangements were made between petitioner and real party in interest, that the three children should visit real party in interest at his home in Santa Barbara County, California, and while there is a dispute between the parties as to the length of the visit that was agreed upon, they are in agreement that it was for a period extending to at least February 1, 1960. In December 1959, the parties agreed that petitioner might visit with the children during the Christmas holidays, this visit to take place at Carmel, California. After so agreeing, real party in interest petitioned respondent court to be appointed guardian over the persons of the three children and secured an ex parte order giving him custody of the three minor children until the hearing upon the petition for guardianship, which was set for January 8th, and repudiated his agreement. On January 6th petitioner filed her answer and objections to the appointment of real party in interest as guardian but in her answer did not attack the jurisdiction of the court. On May 10th, real party in interest commenced an action to determine the right to custody of the said minors in which he alleged certain facts purporting to show a change in circumstances since the entry of the New Mexico decree of divorce and it was for