Campbell v. Campbell

VALLÉE, J.—

Appeal by defendant wife from a judgment for plaintiff husband in an action for exclusive control of the children of the marriage. Defendant filed a cross-complaint for a divorce which was denied. No question is raised as to the propriety of the judgment insofar as it denied defendant a divorce.

[850]

The action was brought under the provisions of Civil Code, section 199. The parties were married August 9, 1936. They separated in June, 1949. They have three minor children aged 10, 8, and 4, respectively. The complaint alleged that for more than three years defendant “has habitually resorted and committed adultery with another man; that for more than ten days last past she has consistently insisted that Janice Eileen Campbell was the child of said other man and not the child of this plaintiff; that by reason of the foregoing defendant is an unfit person to have custody of said minor children”; that plaintiff is a fit and proper person to have the care, custody, and control of the children; that he is able-bodied and well able to provide for them. The answer denied generally the allegations of the complaint. The cross-complaint prayed for a divorce and custody of the children. It alleged cruelty; that cross-complainant (defendant) is a fit and proper person to have custody of the children, and that cross-defendant (plaintiff) is not. The answer thereto denied the allegations of the cross-complaint and alleged that cross-complainant had informed cross-defendant that she had committed adultery with one Scholer and that Scholer was the father of the youngest child and that “by reason of the fact that she habitually frequented beer parlors until one and two o’clock A. M., and used violence and abusive language to the said minor children she is entirZey unfit to have their custody, or the custody of any of them.”

The court found that all of the allegations of the complaint were true and that all of the allegations of the cross-complaint, to which we have referred, were untrue. The judgment awarded the care, custody, and control of the children to plaintiff with the right in defendant to have them in her care at certain specified times. Defendant appeals.

Defendant claims that the complaint does not state facts sufficient to constitute a cause of action. We think it does, but it is not necessary to decide the question for the reason that custody of the children was expressly made an issue by the cross-complaint and the answer thereto and the court had power, even though it denied defendant a divorce, to make such order for the care, custody, and control of the children as seemed to it necessary or proper.