Stanberry v. Stanberry

SHINN, Acting P. J. This is an appeal by plaintiff, Gladys M. Stanberry, from orders of court modifying an interlocutory judgment of divorce so as to relieve the defendant from paying any sum to plaintiff for the support of herself and the three minor children of the parties so long as plaintiff and the children are residing outside of Los Angeles County.

By the terms of a property settlement agreement, which was approved by the court, and by judgment of divorce rendered in favor of plaintiff on July 23, 1945, defendant was ordered to pay to plaintiff for the support of herself and the minor children, Jimmy, age 12, Arthur, age 8, and Gladys, age 2 years, $100 per month until the further order of the court, and was given the right of reasonable visitation of the children. At that time plaintiff owned a home in Long Beach where the parties had been residing. In November of 1945, she sold her home and returned to her former home in. Texas, where she owns a residence, in which she has since resided with the children. Defendant thereupon ceased all payments to plaintiff under the judgment.

In January, 1946, defendant filed an affidavit setting forth that plaintiff had removed to Texas with the children and made request that the court specify the amounts to be paid to plaintiff for her support and for the support of the children and that the decree be modified so as to excuse him from making payment for the support of the children while they were residing outside the State of California. An order to show cause was thereupon issued directed to plaintiff. It was served only upon the attorney who had represented her in the divorce action but plaintiff later appeared in the proceeding. In February, 1946, upon the affidavit of plaintiff that defendant was in arrears in the amount of $300 in payment of support money, an order was issued for defendant to show cause why he should not be found in contempt. After various continuances the matters came on for hearing on March 25, 1946, and defendant’s application was referred to a court commissioner.' The application for modification was heard before the commissioner, who made findings of certain statistical facts, which included findings that the requirements of plaintiff and the children were $173.89 per month, the earnings of defendant [415]$300 per month, and his estimated expenses $195 per month. The findings stated that “ [P] laintiff and minor children moved to Dennison, Texas, during November, 1945; now residing at 730 E. Chestnut St. in Dennison; no order of court permitting plaintiff to take the children to the State; . . . Impossible for defendant to visit children while they reside out of Los Angeles County.” The commissioner made a recommendation reading as follows: “That interlocutory judgment heretofore entered on July 26, 1945, be modified to provide that defendant pay to plaintiff the sum of $100 per month for the support and maintenance of plaintiff and minor children so long as plaintiff and minor children reside in Los Angeles County; that defendant be relieved from payments on account of alimony and support of children while said children are residing outside of Los Angeles County, unless order of Court has been obtained permitting plaintiff to take the children from Los Angeles County. ’ ’ This recommendation was followed by the words “So Ordered,” to which the trial judge subscribed his name.