Simrin v. Simrin

STONE, J.

Appellant, the mother of four minor children, seeks their custody by modification of the final decree of divorce which awarded custody to the father. The interlocutory decree and custody order was entered March 29, 1962, and became final April 14, 1963. This motion to modify the custody provisions of the decree was filed three months later. Appellant also moved for attorney fees and costs.

Respondent husband countered with an improperly noticed motion to modify the child custody provisions of the final decree by reducing from each weekend to one weekend a month, the mother’s right to have the children visit with her.

The trial court denied appellant’s motion for change of custody, denied her attorney fees, and granted the husband’s motion to reduce the mother’s visitation rights to one weekend a month.

Since the welfare of the children was the paramount issue and only one year and four months had elapsed between the original custody order and the mother’s motion to modify it, the court allowed evidence to be introduced concerning the conduct of the mother and father prior to the divorce as well as during the interval between the final decree and the hearing on the motion to modify.

The evidence leaves no doubt as to the wisdom of the trial court in awarding custody of the children to the father in the first place, and the ease narrows to whether the mother proved rehabilitation during the interval between the original custody award and the hearing on the motion. In these circumstances we are guided by

Sanchez

v.

Sanchez,

55 Cal.2d 118, at page 121 [10 Cal.Rptr. 261, 358 P.2d 533]:

“The rule is, of course, that ‘In a divorce proceeding involving the custody of a minor, primary consideration must be given to the welfare of the child. The court is given a wide discretion in such matters, and its determination will not be disturbed upon appeal in the absence of a manifest showing of abuse. [Citations.] “Every presumption supports the reasonableness of the decree.” [Citation.]’ ”

Following the rule of

Sanchez,

we find no abuse of discretion in the order denying the wife’s petition for modification, and limiting the mother’s right to have the children visit with her to one weekend each month.