Russell v. Russell

CHIPMAN, P. J.

This is an appeal from an order made after final judgment in a divorce proceeding, modifying the final decree affecting the custody of a minor child.

An interlocutory decree of divorce was duly made and entered July 1, 1909, in favor of plaintiff on the ground of extreme cruelty, which was made final on July 2, 1910. Pending the trial of the cause the parties entered into an agreement concerning their property rights in which they also agreed that each should have the “care, custody and maintenance of” their minor child, Dewitt Russell, six months of each year, during his minority. The agreement did not designate the months during which each was to care for the child. In the final decree the court adjudged as follows: "That the plaintiff is to have and she is hereby awarded the care, custody and maintenance of said minor child (then eight years old) six months in each year of his minority; and that the defendant is to have the care, custody and maintenance of said minor child for a like period of six months in each year..’ ’ It appears that thereafter, to wit, about July 5, 1910, plaintiff married Charles Rogers and now resides with him in the

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city and county of San Francisco; that since said interlocutory decree said minor child has resided with plaintiff during the months of July, August, September, October, November, and December, and the balance of the year with defendant in the city of Fresno.

Defendant gave notice to plaintiff that, on June 5, 1911, he would move the court to modify the decree in said action “so^ that the custody, maintenance and education of the minor child of said parties ... be awarded to defendant, with the right of said minor child to visit and be visited by plaintiff at such reasonable times as the court may determine, upon the ground that it is to the best interests of said minor child that he be placed in the care and custody of said defendant. ’ ’ The motion was heard on affidavits submitted by the parties and the court made the following order: “It is hereby ordered and adjudged that said motion of defendant be granted; and it is ordered that the said decree in said action heretofore filed herein be and the same is so modified that the custody, maintenance and education of said minor child be awarded to defendant, with the right of said minor to visit and be visited by plaintiff at such reasonable times as the court may determine, and the court does further order and adjudge that said minor child shall visit with and be with said plaintiff during all vacations, from the end of all school terms to the beginning of the succeeding school term of the school where said minor shall attend, and during such other time or times as may be reasonable, provided, however, that the actual attendance of said minor at school shall not be unnecessarily interfered with by such visits.”