Moon v. Moon

BISHOP, J. pro tem. Plaintiff: gave notice, January 5, 1943, that she appealed from two orders, one made on December 18,1942, and the other on January 4. In the first of these orders the court modified a provision, in the interlocutory judgment, respecting the custody of Charla, the three-year-old child of the parties, and by the order of January 4 the court [186]denied a motion which, if granted, would have restored the provision that the custody of Charla was awarded to the plaintiff.

In the interlocutory judgment which had been entered in this cause on November 17, 1941, this provision was made respecting Charla’s custody: “The Court hereby awards to the plaintiff and cross-defendant, the custody, care and control of Chabla Jean Moon,' the minor child and baby of the parties herein to remain in the maternal grandparents home until further order of the Court; that the defendant and cross-complainant may visit the child at all reasonable times without interference, and that he may have the child with him each Tuesday of each week from 9:00 o ’clock a. m. until 7:00 o ’clock p. m. beginning November 4, 1941 until further order of the Court.” A final judgment of divorce, entered November 23, 1942, by reference adopted the terms of the interlocutory decree respecting custody and thus continued them in effect. Because the trial court could not, validly, decree that plaintiff must continue to live at any particular place, certainly not at a home which was not hers, and because it is apparent that the court was concerned not with the plaintiff’s environment, but with that of Charla, we are of the opinion that the only reasonable construction to be placed upon the provision just quoted is that it required that Charla, not the plaintiff, was to remain in the home of Charla’s (not the plaintiff’s) maternal grandparents.

Undoubtedly the trial court had authority to change its order respecting the custody of Charla (Civ. Code, sec. 138.) Because of her tender years, “other things being equal” she should be in the custody of the plaintiff, her mother. (Civ. Code, sec. 138.) The court having originally determined that she should be in her mother’s custody, some change in conditions or some unusual circumstance had to be shown to justify an alteration of that provision. (Foster v. Foster (1937), 8 Cal.2d 719, 726 [68 P.2d 719]; Washburn v. Washburn (1942), 49 Cal.App.2d 581, 587 [122 P.2d 96].) One who seeks a modification of an existing custody order has the burden of proving that conditions have so changed that a modification is justified (Prouty v. Prouty (1940), 16 Cal.2d 190, 193 [105 P.2d 295]), and the paramount purpose of the whole proceeding is to serve the best interests of the child. (Prouty v. Prouty, supra, p. 195.)