Loudermilk v. Loudermilk

COUGHLIN, J.

This is an appeal from an order modifying the custody provisions of an interlocutory decree of divorce. The plaintiff, respondent herein, was awarded an interlocutory decree of divorce from the defendant, appellant herein, which contained the following provisions:

“It Is Fubtheb Obdebed Adjudged and Decbeed, That in compliance with Stipulation on file herein that the care, custody and control of the minor child of these parties, to wit: Sheebi Lynn Loudebmilk, born July 26, 1955, shall be awarded jointly to both of these parties and that the Defendant shall have the physical custody of said child until further order of this Court and the Plaintiff shall have the reasonable right of visitation with said child.”

A year and a half later, the plaintiff requested that she be awarded custody of the minor, and moved that the interlocutory decree be amended accordingly. Her motion was granted. The defendant appeals.

At the time the interlocutory decree was entered the plaintiff was in ill health; the defendant was living with his mother who was caring for the child; and the child, a daughter, was 4 years of age and not attending school. Thereafter the defendant and his daughter moved to Los Angeles County; for a time lived with his sister in Anaheim; then lived in a

motel;

subsequently married and, with his second wife and

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daughter, moved into a home at La Puente. In the meantime the daughter became of school age and was attending school. The evidence indicates that upon the mother’s departure after visiting her daughter, the latter would get emotionally upset. At the time of the hearing on the motion for modification, the plaintiff was in good health; had married a second time; was residing in an apartment at Pacific Beach; and had made arrangements for her daughter’s attendance at school.

In making its modification order, apparently the court was guided by the provisions of Section 138 of the Civil Code which directs that:

“[0]ther things being equal, if the child is of tender years, custody should be given to the mother;” impliedly found that “other things” were equal; and awarded custody to the plaintiff, subject to visitation by the defendant. The defendant contends that the court erred in thus modifying its previous order because there was no showing of a change in circumstances since entry of the interlocutory decree awarding him custody, and cites the decisions in