Davis v. Davis

DOOLING, Acting P. J.

Appellant Virginia G. Davis (now Neely) obtained a final decree of divorce from respondent in the present action on June 3, 1950. By said decree the parents were given joint custody of their two minor children ' (a son, Paul, born in 1946 and a daughter, Gaylord, born in 1948) with the physical care, custody and control vested in the mother, subject to reasonable rights of visitation by the "father. The decree incorporated an agreement of the parties by which appellant mother assumed full responsibility for the children’s support, she having a separate income from a family trust of $40,000 to $60,000 per year.

After entry of the final decree appellant married one Ralph Neely and has since resided with her present husband and the two children in Oklahoma. -

• Respondent remarried in 1951, graduated from law school in 1952 and commenced the practice of law in Bakersfield in 1953, where he continues to live and practice law.

Respondent's financial circumstances did not permit him to visit the children in Oklahoma until the summer of 1954. Tiowever he wrote to them regularly and from time to time sent them gifts. The mother, however, did not permit his children to receive either letters or gifts from him.

When respondent went to Oklahoma in 1954 to visit his children appellant refused to permit him to see them. He commenced a habeas corpus proceeding in the district court in Oklahoma asking the court to enforce the visitation provisions of the California decree. After a hearing the Oklahoma court denied him the relief sought. The court in that proceeding found that the children are being cared for, nurtured, supported and educated by appellant and her husband Ralph Neely; that respondent has never contributed to his children’s support; that he has not attempted to visit them since May, 1950 and they are total strangers to him; that the status and welfare of said children has completely changed toward Mm, said children having been brought up in a home where other children have been born with whom they share life as brothers; and that any visitation by respondent would be completely disruptive to said children and a detriment to their welfare and happiness.

[77]

This order has become final. On December 11, 1957, upon affidavit respondent secured from the superior court in which the divorce action is pending an order to show cause why the decree of divorce should not be modified to allow respondent to take his children from their present home for reasonable visits with him. This order to show cause was served upon appellant’s attorneys in the divorce action (as in