Queirolo v. Queirolo

CHIPMAN, C.

This is an appeal by defendant from an order modifying a decree, given and made November 18, 1896, by which plaintiff obtained a divorce from defendant on the ground of her extreme cruelty, and awarding the custody of their three minor children to defendant.

On November 22, 1897, plaintiff filed a verified petition in the action, setting forth, among other facts, that defendant is residing with said three children at No. 321 Pacific street; that the children are of tender years, to wit, one a boy aged nine years, one a girl aged seven years, and one a girl aged five years; “that said house is a notoriously disreputable house and an unfit and improper place in which to rear said children; that said defendant has neglected and improperly treated said children and each of thdm”; that “for a long time past said de

[688]

fendant has notoriously and illicitly cohabited and now cohabits with one A. Donzelli, though not united to him in the bonds of matrimony, .... and that the said defendant is not a fit or proper person to have care, control, custody, and education of said children.” The petition concludes with a prayer that the decree be modified so far as relates to said children, etc.

The petition was ordered to be heard on November 26, 1897, of which defendant had due notice, and came on to be heard on November 30th, plaintiff appearing in person and by counsel, and defendant appearing by counsel, Mr. F. D. Brandon.' A continuance was asked by defendant’s counsel on the certificate of her attending physician that defendant was “too sick and ill to be personally present in court.” By consent of the parties the testimony of several witnesses was taken and the further hearing was postponed until December 3, 1897, at which time defendant’s counsel again moved for a continuance on the same ground as before, and the court denied the motion. Counsel for defendant thereupon orally denied the allegations of the petition except as to the alleged illicit cohabitation of defendant with the said Donzelli, which he admitted to be true. The matter was submitted to the court for its decision, and on December 8, 1897, the court made its order modifying its decree in the divorce case and awarded the custody of the children to plaintiff. The order recites, among other things, that “all the allegations set forth in plaintiff’s petition were proven to the satisfaction of the court.”