Luck v. Luck

Paterson, J. This is an action for a divorce on the ground of extreme cruelty, and for the custody of two minor children on the ground that defendant is not a fit and proper person to have the care, custody, or control of them. The answer denied specifically the charges of cruelty and defendant’s unfitness to care for the children, and alleged that the plaintiff abandoned defendant and took with her the children, without cause, and against his will and consent. Findings were waived, and judgment was entered in favor of the defendant, denying the prayer of the plaintiff, and giving to him the custody and control of the children.

As the case is before us on the judgment roll alone, we must presume that the evidence was of such a character as to rvarrant the court in finding that the defendant was better qualified than the plaintiff to care for the children. Naturally and presumptively the mother is entitled to the custody and care of minor children [655]of tender years; but it is for the trial court to say, upon, all the evidence adduced at the trial, whether she is in fact more worthy of such a trust than the father.

It is claimed by appellant that the court below — the superior court of Alameda County—had no power, after it denied the plaintiff’s application, to direct that the children be cared for by defendant at Martinez, which is in an adjoining county. There is no merit in this contention. “ The husband is the head of the family. He may choose any reasonable place or mode of living, and the wife must conform thereto.” (Civ. Code, sec. 155.) It appears that the husband lives at Martinez, and that the wife has no j ust or legal cause for not living with him nor for taking the children away. His home is the legal domicile of the family; and if he is entitled to the custody of the children at all, he has the right to name any reasonable place in which they shall abide with him. So long as the husband is satisfied with the decree, and is without fault, the wife cannot complain.

The order giving to defendant the custody of the children is one within the control and subject to the discretion of the court below. If circumstances occurring hereafter should render it desirable that the order should be revoked or modified, the learned judge who decided the controversy will no doubt act for the best interests of all the parties, and make the proper order with respect thereto.

Judgment affirmed.