Beal v. Beal

PRESTON, J.

Appeal from order of the San Mateo County Superior Court, modifying provisions of final decree of divorce, relating to custody of children and allowance for their support and education.

On January 23, 1928, these parties executed a written property settlement agreement whereby, after specifying the terms of property division, it was agreed that the wife should have the custody of the two minor sons of the marriage, Carlton Beal, then about thirteen years of age, and Thomas Evans Beal, then about ten years of age, the husband reserving the right to visit them at all reasonable times. It was also agreed that the husband should pay to the wife $750 monthly for the support and education of said sons; that he should require no accounting as to disposition of said payments; that in event of divorce, the decree should provide for their continuance, but, other than as set forth in said agreement, neither' party should assert against the other any property claim. Lastly, said agreement provided: “Nothing in this agreement, however, shall interfere or be construed to interfere with the rights and powers of the courts of California with respect to children.”

On January 27, 1928, plaintiff wife, upon grounds . of extreme cruelty, secured an interlocutory decree of divorce, wherein the court adjudged said property settlement to be just, fair and equitable, and awarded custody of the sons to her, with allowance for their maintenance as above set forth. On January 28, 1929, a final judgment of divorce was entered. It ordered that the provisions of the interlocutory decree relating to custody, control, maintenance, care and education of the minors and the right of the father to visit them at all reasonable times and places “are hereby

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carried into this final decree of divorce, subject to the further order of the court”.

Frequent controversies had from time to time arisen between the parties over attempts of the father to exercise his right to visit the children and he had, on occasions, invoked the aid of the court to secure orders permitting him to take the children out and to have them visit him during school vacations. In fact, on December 11, 1928, the wife was cited for contempt because of her failure to obey an order of the court permitting the father to take the sons to a Stanford-California football game and to dinner and places of amusement on noneonsecutive week-ends. Finally, in September, 1929, with the consent of both parties, the court made an order modifying the final decree of divorce by placing the elder son, Carlton, in the joint custody of the parents; leaving the younger son in the custody of the mother; relieving the father from said $750 monthly payments during the portions of the summer vacation that the children spent with him; ordering enrollment of the elder son in the Menlo School for Boys, to attend there until graduation, with rights to both parents to visit him; ordering the mother to pay his school expenses from said allowance and to permit him to rent a saddle-horse and to have $25 a month spending money; and, lastly, giving the father the right to visit the younger son and to have both children during at least one-half of the summer vacation periods.