Woof v. Woof

BARNARD, P. J. This is an appeal from an order modifying all former orders with reference to the custody of the minor son of the parties to the action.

On August 31, 1938, an interlocutory decree of divorce was entered in favor of the wife. Among other things, this decree awarded the wife custody of the child during the school year and gave such custody to the father during the summer vacation months of each year. By orders entered on December 23, 1938, and March 17, 1939, this order for custody was " modified by allowing the father to also have the child from 5 p. m. Friday evening to 6 p. m. Sunday evening through the school months,, with the exception of the first weekend in each month. A final decree of divorce was entered on September 1, 1939, which confirmed the order for custody as contained in the interlocutory decree, as thus modified. So far as shown by the record, the order respecting custody was not again modified or changed prior to the making of the order here appealed from.

It appears, however, that on April 18, 1939, the husband filed an affidavit in this case alleging, on information and belief, that the mother had left the jurisdiction of the court and had taken the child to Texas, and requesting the court to •make an order awarding custody of the child to him. On April 25, 1939, this motion to award the sole custody of the child to the father came on for hearing in the original case, the mother neither being present nor represented by counsel. There is no showing that service was made on anyone. The court then made an order adjudging the child to be a ward of the juvenile court and directing a probation officer to take such steps as might be necessary to locate the child and bring it within the jurisdiction of the court. Not only does it appear that this order is void on its face, but it neither purports to modify any preexisting order in this action, nor to change the actual custody of the child.

While no further orders were made, as far as the record shows, the father seems to have obtained possession of the child at some time and in some manner which does not appear. And on July 20, 1942, the mother filed notice of a motion to have the court modify its order of April 25, 1939, and to have the custody of the child awarded to her. On August 6, 1942, [53]after a hearing thereon, a minute order was entered denying the motion “as per the order to be signed and filed herein hereafter.” No such order was signed or filed.