Beyerle v. Beyerle

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ANGELLOTTI, J.

On November 29, 1904, an interlocutory judgment was given by the superior court of Orange County in an action for divorce by plaintiff against defendant, wherein it was adjudged that plaintiff was entitled to a divorce, and that plaintiff should have the care and custody of two minor children, the issue of the marriage, one of whom was LaVerne Beyerle, a girl, then of the age of fourteen months. On December 8, 1905, final judgment was given in said action, the same provision being made therein as to the custody of the children as was made in the interlocutory judgment. No appeal was ever taken from this judgment, and the parties have ever since been divorced and separated one from the other. On December 29, 1904, defendant assumed the care, custody, and control of said child, LaVerne, and has ever since retained such care, custody, and control. On July 27, 1907, and again on August 3, 1907, plaintiff demanded of defendant that he surrender the care, custody, and control of said minor child to her, but he refused to do so.

This proceeding was inaugurated by plaintiff in said superior court in August, 1907, by the filing of a petition wherein she alleged the foregoing facts. She further alleged that she is a fit and proper person to be awarded the care and custody of the child, that the defendant is not a fit and proper person to have such care and custody, and that it is for the best interest and welfare of said minor child that she be returned to and remain in the care, custody, and control of plaintiff. Other allegations we regard as immaterial to a. decision on this appeal. She asked for a citation requiring defendant to show cause why the court should not make an order requiring him to return the child to the care and custody of plaintiff, and also why he should not be punished for contempt for disobedience of the provisions of said judgment.

The citation was issued and the defendant, in response thereto, presented a verified answer. In this answer it was made to appear that subsequent to the giving of the interlocutory judgment, which was based on the default of the defendant,—namely, on December 28, 1904, a written agreement relative to the custody of the children and division of property was executed by the parties, by which the care and cus

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