Lufkin v. Lufkin

SEA WELL, J.

Defendant Harry R. Lufkin appeals from an order directing him to pay to plaintiff Myrtle G. O’Neil, formerly Myrtle G. Lufkin, who procured an interlocutory decree of divorce from said defendant in 1920, the sum of $3,787.83, said sum being one-half the total amount necessarily expended by plaintiff in providing Harry R. Lufkin,

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Jr., the minor child of said plaintiff and defendant, with the necessaries of life since August 12, 1922, and further directing defendant to thereafter pay to plaintiff, who by the order appealed from is awarded custody of said child, the sum of $30' monthly during the minority of said child for his support and maintenance. The order appealed from purports to be a modification and amendment of a final decree of divorce entered by the Superior Court of the City and County of San Francisco on February 2, 1921, which provided that the custody of said child be awarded to both plaintiff and defendant, “with the direction that said child be kept in a suitable school, the expense of his maintenance to be equally borne by each of said parties.”

■ Plaintiff and defendant intermarried on December 21, 1905. On January 19, 1920, plaintiff filed suit for divorce, alleging as a ground therefor defendant’s failure to provide her with the necessaries of life for a period of more than two years. She asked custody of Harry R. Lufkin, Jr., the only child of the marriage, then eleven years of age. Defendant filed an answer in the form of a general denial and his attorney was present at the hearing. The interlocutory decree, entered on January 21, 1920, provided that the custody of the child be awarded to both plaintiff and defendant, and directed “that said child be placed and kept by said parties during the school terms in some good, proper and suitable boarding school, where he shall reside and be maintained and educated, and that during vacation periods of said school and such other times as he is not required to be at such school, his custody be shared equally by the plaintiff and defendant. And if the parties cannot agree upon such school, then the same to be selected by the court. And that the expense of the maintenanace and education of said minor child be borne equally by the parties hereto.” Plaintiff waived all claim to alimony.

The final decree, of which the order herein appealed from purports to be a modification and amendment, was entered on February 3, 1921, upon motion of defendant. As noted above, it contained a provision with respect to the custody of the minor child similar to the provision incorporated in the interlocutory decree.