Parkhurst v. Parkhurst

SEARLS, C. This is an appeal by the defendant from an order of the superior court in and for the county of Santa Clara, refusing to modify a decree of divorce, and to allow defendant one hundred dollars per month for the care, custody, and maintenance of Herbert N. and Minnie A. Parkhurst, aged seventeen and fifteen years respectively, the children of the parties hereto.

The cause was heard in the court below upon the affidavits of the parties and of sundry other persons, and upon oral testimony taken in open court.

Written findings were filed, from which it appears, among other things, that by a decree of the superior court entered February 29, 1,892, the marriage which had theretofore existed between plaintiff and defendant herein was dissolved; their property divided; the defendant herein receiving real property of the value of $10,000, and plaintiff received the residue of the community property, which is of the value of $11,681.

Plaintiff was indebted at the date of the decree in the sum of $11,800, which he has since reduced to $5,358.

Defendant also possessed at that date certain other money or money invested of the value of say $3,100 (presumably her separate property), of which she still has $1,600 invested with a son in Oregon.

The decree awarded the two infant children to the custody of defendant, and provided that she be charged with their maintenance and education at her own cost and free from any charges against the plaintiff therefor; that she should not have ■ any alimony or allowance from the plaintiff, and that she should not remove the children from the state of California, except by leave of the court.

This decree, so far as the disposition of the property, custody of the children, waiver of alimony, costs, etc., was entered pursuant to a stipulation, entered into and signed by the parties, husband and wife. The admission of this stipulation in evidence was objected to by defendant, and the ruling against her is assigned as error.

Plaintiff married again after his divorce from defendant; had [21]an income from bis business as a real estate and insurance agent of over three thousand dollars per annum until his health failed, and he was compelled to give up in part his business, and it is not probable he will in the future be able to do more than meet expenses and indebtedness.