Phillips v. Phillips

California Court of Appeal May 23, 1960 No. Civ. 24103Published

Before: Bishop

AI Brief

AI-generated · verify before citing

Holding. The court affirmed an order modifying child custody, holding that the trial court did not abuse its discretion in determining that a change in circumstances warranted the modification and that excluding evidence of the stepfather's past conduct based on remoteness was proper.

Issues

Whether the trial court abused its discretion in modifying a child custody order based on changed circumstances.
Whether the trial court erred in excluding evidence of a stepfather's past conduct on the grounds of remoteness.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“We have found no abuse of that broad discretion that is vested in the trial court, nor any procedural error, and so are affirming the order.”

“the admissibility of evidence in the face of objection upon the ground of its remoteness ordinarily should be left to the sound discretion of the trial court.”

BISHOP, J. pro tem.

†

The defendant has appealed from the order taking the custody of his minor son from him and giving it to the mother, the plaintiff. As is usual in-this type of case, questions of grave import have to be considered, the answers to which can not be found in any law book. We have found no abuse of that broad discretion that is vested in the trial court, nor any procedural error, and so are affirming the order.

[212]

An interlocutory divorce decree was entered in this action, February 1, 1956. By its terms the decree placed Charles, the older of the two children of the parties, in the custody of the father, awarding the younger son, Robert, to the care of the mother. This arrangement was in accordance with the property settlement of the parties, and was continued in effect by the final decree. In the property settlement, dated December 20, 1955, the age of Charles was given as 4, that of Robert as two years younger.

In an affidavit, made March 6, 1959, the plaintiff alleged that at the time the custody orders were made, she did not have adequate facilities to take care of both children; that conditions have changed; she is remarried and has a suitable three bedroom home for them; is not working, so can devote full time to their care. Basing her request upon this affidavit, the plaintiff asked that the defendant be ordered to show cause why the custody of Charles should not be awarded to her.

At the hearing of the order to show cause, plaintiff testified to the matters contained in her affidavit, and in addition gave the date of her second marriage as February 23, 1957; said that she was expecting another child in May, 1959; and that the two boys, Charles and Robert, who were together most week ends, enjoyed the company of each other. A good deal more testimony was received, some of which made the task of the trial court, faced with the problem of determining whether to change the custody order as it affected Charles, more difficult rather than easier. At the conclusion of the hearing the matter was taken under submission, and then the order appealed from was made. By its terms, the order was not to affect the custody of Charles until September 1, 1959, and the parties were ordered to return to the court June 15, 1960.

Goto

Phillips v. Phillips

AI Brief

More from California Court of Appeal

Related research

AI Brief