Lefebvre v. Lefebvre

BURNETT, J.

On May 26, 1916, plaintiff obtained an interlocutory decree "of divorce against the defendant on the ground of cruelty and she was awarded the custody and control of Leon Lefebvre, who is now the age of six, except that the grandparents of said child and the defendant were to have his custody for a certain portion of the time. Thereafter a final decree was rendered and subsequent thereto both appellant and respondent remarried. Appellant is living with her second husband, Gr. F. Schmidt, and respondent is living with his second wife. Appellant has a child by her second husband but respondent has no other than the said Leon.

On the twentieth day of August, 1919, respondent filed a petition in the superior court of Sacramento County praying for a modification of the final decree to the extent that defendant be awarded the custody of said minor child, supported by certain affidavits filed therewith. Subsequently appellant filed counter-affidavits denying most of the allegations set forth in defendant’s affidavits. Thereafter the application came on for hearing and was submitted upon said affidavits and also the testimony of various witnesses. After consideration of said matter, the court modified its decree by making the following order“It is further ordered that the care, custody and control of the minor child of said parties, to wit, Leon Lefebvre, be and the same is hereby given to Henri C. Lefebvre, the father of said Leon Lefebvre, except that plaintiff shall have the right to be with said child and take said child out one day of each week be

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tween the hours of 8:30 A. M. and 6:30 P. M., at which hours said child shall be returned to said defendant. ’ ’ Prom this order modifying the final decree of divorce the appeal has been taken, and appellant urges two grounds for the reversal of the ordet as follows: “That the court erred and overstepped its discretionary powers in taking the care and custody of the minor child of tender years from the mother without first requiring some evidence, however slight, of the moral or mental unfitness of the mother; that the court erred in refusing to admit evidence as to the qualifications and personal fitness of the defendant.”

As to the principles of law applicable to the situation, there is no controversy between the parties. It is sufficient to cite them as follows: