Borgerson v. Borgerson

[412]

KNIGHT, J.,

pro tem.

This is an appeal by the defendant Osear Borgerson from an order denying his motion to modify a final judgment of divorce with respect to the custody of a minor child of the age of five years, the issue of the marriage of plaintiff and defendant. The motion was based upon the alleged misconduct of the plaintiff. The grounds of appeal are that the trial court erroneously excluded certain material evidence offered by appellant and that it abused its discretion in denying defendant’s motion. It should be stated in the beginning that the record on this appeal is, unfortunately, incomplete and unsatisfactory and does not allow us full opportunity to fairly and intelligently review either of the questions presented by the appeal. Explanatory of the condition of the record, appellant, in his opening brief, says: “Here, we desire to say a word about the Reporter’s Transcript. The hearing in the lower Court covered a portion of two days; June 30th and July 1st. During the hearing on the first day, it was impossible to get a court reporter and, although notes of the testimony were taken and we have endeavored to have counsel stipulate as to the testimony for the purpose of assisting this Court in its decision, it has been impossible to get anything that happened on the first day into the Transcript.” The record on appeal was prepared pursuant to section 953a of the Code of Civil Procedure, and consequently the reporter’s transcript covers only the evidence and proceedings reported on the second day of the hearing. We are, therefore, unable to ascertain what occurred during the first day of the hearing, and we are consequently not informed upon what facts and circumstances the trial court finally acted in denying defendant’s motion.

It has been repeatedly held that the matter of the award of the custody of children, in divorce proceedings, is addressed to the sound discretion of the trial court, and that on appeal interference will be justified only where there is shown to be clear instances of an abuse of such discretion.

In

Crater

v.

Crater,

135 Cal. 633 [67 Pac. 1049], it is said: “The good of the child is regarded as the controlling force in directing its custody, and the courts will always look to this here rather than to the whims and caprices of the parties. The morals of the parents, their, financial