DeBoynton v. DeBoynton

California Court of Appeal Nov 18, 1955 No. Civ. No. 20617Published

Before: Moore

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Holding. The court held that the trial court did not abuse its discretion in defining the father's visitation rights with specificity, as the order did not constitute a substantial modification of custody but rather an enforcement of existing rights based on the child's best interests.

Issues

Did the trial court abuse its discretion by defining the father's visitation rights with specificity?
Was a showing of changed circumstances required to define the terms of reasonable visitation?
Was the trial court required to accept the expert testimony of the mother's psychiatrist regarding the child's welfare?

Disposition. affirmed

Quotations verified verbatim against the opinion

“Respondent's petition merely sought the aid of the court to effect definite terms for the enforcement of his rights under the decree.”

“The paramount concern in awarding custody as between parents is the welfare of the child who is not property, but is a person with rights.”

“The opinion of an expert is not of such quality as to compel its acceptance by the trier of fact.”

137 Cal.App.2d 106 (1955) MARION E. DeBOYNTON, Appellant,

CURTIS SHERMAN DeBOYNTON, Respondent.

Civ. No. 20617. California Court of Appeals. Second Dist., Div. Two.

Nov. 18, 1955. Robertson, Harney, Drummond & Dorsey and Brinton N. Bowles for Appellant.

Iverson & Hogoboom and William P. Hogoboom for Respondent.

MOORE, P. J.

The question for decision is whether the trial court abused its discretion in modifying the interlocutory decree of divorce by so interpreting its provisions with respect to custody as to confirm the father's right to visit with his child beyond the limitations imposed upon him by the mother.

By such decree, entered August 8, 1952, "the custody of the minor child of the parties, Elizabeth Joan DeBoynton, be and the same is hereby awarded to plaintiff, subject to the right of reasonable visitation by defendant." Dissatisfied [108] with the conduct of appellant in refusing "to allow defendant to take the minor child ... outside the residence occupied by plaintiff" and because she has "at all times denied defendant his right of reasonable visitation," by petition, filed October 6, 1953, respondent caused appellant to be ordered to show cause why she had refused to permit the child to visit with respondent outside the presence of appellant. Pursuant thereto, a series of hearings was held by the trial court. On October 27, 1953, the matter was referred to Commissioner Brock for "findings and recommendation" and an investigator was appointed, "his report to be received in evidence, subject to the right of both parties to offer additional evidence." Pending further hearing, without prejudice, defendant was allowed to take the minor child away for Christmas Eve night, to be returned at 10:30 a. m. on Christmas day. Three other hearings were held on January 26, May 26, and June 15, 1954. A final order was entered on June 21, 1954, whereby "the defendant shall have rights of reasonable visitation with the minor child and the defendant shall have physical custody of said child on alternate weekends" from 6 p. m. Friday to 7:30 p. m. on Sunday and "shall have physical custody of said minor child on alternate Christmas holidays from December 20 to December 26 of alternate years."

DeBoynton v. DeBoynton

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MOORE, P. J.

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