Gury v. Gury

California Supreme Court Dec 11, 1933 No. Docket No. L.A. 14249.Published

Before: Preston

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Holding. The court held that the trial judge had jurisdiction to complete the hearing of the cause despite the passage of time and the transfer of the case, and that the order enforcing visitation rights was a proper exercise of the court's authority to compel compliance with the original decree.

Issues

Whether the trial judge retained jurisdiction to complete a partially heard matter after the expiration of his initial assignment and the case being taken off calendar.
Whether the trial court erred in enforcing visitation rights without a showing of changed conditions.
Whether the appellant was denied proper notice of the hearing following a transfer of the cause.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The fact that the matter was permitted to go off calendar after partial hearing did not deprive said judge of jurisdiction to thereafter restore it to the calendar and finally hear and determine it.”

PRESTON, J.

In this cause, after prolonged hearings upon a motion styled “motion to modify interlocutory decree permitting plaintiff to visit and have the minor children”, the court made its order authorizing plaintiff wife to have with her the two minor children of these parties, properly clothed and equipped, on stated occasions, to wit: on each first and third Saturday and Sunday of the month; one month during vacation each year and alternate holidays. Defendant appealed. Despite the title of plaintiff’s motion, it was not in reality an attempt to modify the decree or change the custody of said children, but was in effect a proceeding to compel appellant to comply with certain terms of said interlocutory decree and the property settlement therein incorporated.

The interlocutory decree of divorce in favor of plaintiff was entered July 2, 1928; final decree October 29, 1931. The interlocutory decree, among other things, awarded custody of the two minor children to appellant, but it also approved, and by reference incorporated, a property settlement agreement which, in providing for appellant to have custody of said children, reserved to plaintiff the right to “take one or both” of them “upon due notice and by agreement of the parties” and “to visit said children”. Efforts of plaintiff to exercise this latter right without undue interference on the part of appellant resulted in numberless, indeed continual, controversies (see in this connection

In re Gury,

103 Cal. App. 738 [284 Pac. 944]). Plaintiff therefore instituted this proceeding to invoke the aid of the court to provide a working arrangement for enforcement of her right, to see the children under harmonious conditions. There is,

[508]

therefore, no substance in appellant’s several contentions based upon the theory that to modify a decree determining the fitness of parties to have the custody and care of minor children, it is necessary to show a change of conditions subsequent to entry of the decree.

The voluminous evidence before us abundantly supports the action of the court below. Although the interlocutory decree adjudged that plaintiff was not a fit and proper person to have custody and control of said children, this provision appears to have crept into the record through inadvertence. An effort of the trial judge to correct it by filing amended findings and an amended decree proved futile

Gury v. Gury

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PRESTON, J.

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