Dotsch v. Grimes

WHITE, J. This is an appeal by defendant from a judgment of the Superior Court of Los Angeles County modifying an order in re custody of the minor child of plaintiff and defendant, which custody had formerly been granted by the Court of Common Pleas of the County of Summit, State of Ohio, to plaintiff mother “during the regular public school term in the community in which the child then resides” and to defendant father “during the summer vacation period, which shall begin on the third day after the closing date of the regular public schools in the spring, and shall end on the third day before the commencing of the regular public school -term in the fall.” By her complaint the plaintiff mother sought the sole and exclusive custody of said minor, and the litigation was instituted pursuant to the provisions of section 199 of the Civil Code. To plaintiff’s complaint defendant father filed his answer, and the cause proceeded to trial, following which the court ordered judgment, adopting as such judgment the aforesaid judgment rendered in the Ohio court relating to the custody of said minor child, except “that the period of time during which Ernest A. Grimes, the father of said child, shall be entitled to his custody shall be for a period of six weeks, instead of three months, during the summer vacation period of the public schools.”

Plaintiff mother remarried and has resided at San Pedro in Los Angeles County since 1940. When in September, 1944, she obtained custody of the child in the Ohio court, she brought him to her California home, and in March, 1945, commenced this action for his exclusive custody. No brief has been filed on behalf of respondent.

The child being within this jurisdiction, the courts of this state are empowered, notwithstanding any judgment or order of the courts of a sister state, to inquire into and determine in their own behalf what are the best interests and [420]what will best promote the welfare of the child. This because under long-recognized authority in this state an award of custody of a minor child of divorced parents to either party in a divorce proceeding has no permanent finality, and is later subject to change and modification by the court wherein it was made. This rule is applicable not only to orders made by California courts, but to such former orders of courts in other states. (Foster v. Foster, 8 Cal.2d 719, 726 [68 P.2d 719].)

While contending that the order of the Ohio court was entitled on principles of comity to full faith and credit in the courts of this state, appellant does not seriously insist that the jurisdiction of the Superior Court of Los Angeles County to make an order modifying the Ohio order can be successfully challenged upon the ground that the latter order was res judicata and could not therefore be changed. Appellant, however, does contend that where no evidence was offered or introduced of any change in circumstances arising after the making of the Ohio order, the California court was without authority to modify the same. In support of this claim appellant relies upon Foster v. Foster, supra, wherein the court, at page 728, quotes approvingly from Titcomb v. Superior Court, 220 Cal. 34, 39 [29 P.2d 206], as follows: