Jordan v. Jordan

GRIFFIN, J. Appellant Pat Oklah Jordan and respondent Martin Jordan are the parents of Betty Ruth Jordan, a minor child. Prior to 1940, they resided in Oklahoma. Respondent, in Oklahoma during that year, filed an action for divorce. He was granted the decree and the custody of their two minor children. Appellant came to California. Respondent thereafter cared for and supported the children. In September, 1941, appellant returned to Oklahoma and instituted proceedings to modify the court’s order respecting the custody of the children. After a full hearing was had, the decree was modified to the extent that appellant here was given the custody of Betty Ruth Jordan, for the months of June, July and August of the year 1942. The evidence shows that at the time the decree was thus modified appellant promised the trial judge that if he granted her permission to take the children to California she would return them to Oklahoma at the end of the period mentioned in the modified decree. Appellant returned to California and in June, 1942, went to Oklahoma to secure the children as permitted. She also promised respondent she would return them at the end of the three months period. Appellant left for California with Betty Ruth. She testified in her deposition that it was her [373]intention to keep the child in California notwithstanding the Oklahoma decree. On August 22, appellant wrote respondent for permission to allow the child to remain in California, which permission was refused. She then refused to return the child to Oklahoma. Respondent came to California. Appellant filed the complaint in this action on October 5, 1942, seeking the custody of the child and obtained an ex parte order granting her the temporary custody of it. Orders to show cause why the custody should not be changed were obtained by each party. Respondent answered and by way of cross-complaint sought the dismissal of the action and an order of custody.

The trial court found (Finding No. VI) that “there has been no material change in circumstances with respect to the parties hereto, or with respect to the welfare of Betty Ruth Jordan, the minor child of the parties hereto, since the 2nd day of September, 1941, and that it is for the best interest of said minor child that she be returned forthwith to the care, custody and control of her father, Martin Jordan, defendant and cross-complainant herein.”

It is argued that this finding is not a finding of ultimate fact but only a conclusion of law and therefore does not support the judgment which followed, citing such cases as Franklin v. Franklin, 140 Cal. 607 [74 P. 155]; Smith v. Smith, 62 Cal. 466; and Perkins v. Perkins, 29 Cal.App. 68 [154 P. 483], We see no merit to this point. The line of demarcation between what are questions of fact and conclusions of law is not one easy to be drawn in all cases. It was said in Palmer v. Fix, 104 Cal.App. 562 [286 P. 498], at page 567, quoting from Levins v. Rovegno, 71 Cal. 273, 275 [12 P. 161] :